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News from our team

Expect Possible Delays Receiving Your Employment Authorization or Permanent Residence Cards

USCIS has confirmed that their card production facility in Corbin, KY is undergoing maintenance, and all card production work has now been transferred to their facility in Lee’s Summit, MO. A backlog of cases is expected, and clients may not receive their cards for at least two to three weeks after approval of their respective application. It is anticipated that this issue will be resolved sometime during the month of... read more

Are Independent Contractors Always Exempt From I-9 Requirements?

Employers rarely question the general rule that independent contractors are not required to complete a form I-9. Most employers believe that, if an individual is labeled as an independent contractor, a form I-9 is not required. In our experience defending clients in I-9 enforcement audits by the Immigration and Customs Enforcement (ICE), individuals that an employer considers to be independent contractors are not given an all-inclusive exemption from the I-9 requirement. In fact, most Notices of Inspection, served by ICE as a result of an I-9 audit, demand that employers produce a list of independent contractors utilized in addition to all forms I-9 for employees. In addition, ICE agents typically question employers to determine if independent contractors are properly labeled as such. If the independent contractors receive significant control or supervision from the employer, are involved in the production of the employer’s products or engage in an essential function or service central to the employer’s business, ICE is likely to request that the employer provide valid I-9 forms for each contractor. If such forms do not exist, ICE could seek a penalty of up to $1,100 per contractor. So how can an employer determine if an individual is a true “independent contractor” for purposes of the I-9 requirement? A recent decision by the Office of the Chief Administrative Hearings Officer (OCAHO) illustrates the methodology generally used by the courts to answer this question. In U.S. v. Siddikov, ICE filed a complaint seeking penalties for certain I-9 failures and alleging that Saidabror Siddikov d/b/a Beyond Cleaning Services (BCS) failed to prepare, retain or present I-9 forms for six individuals. The owner argued that all six individuals were independent contractors,... read more

USCIS Finalizes New Guidance on L-1B Specialized Knowledge Petitions

On August 17, 2015, U.S. Citizenship and Immigration Services (USCIS) issued a final Policy Memorandum on L-1B visa adjudications (L-1B Memo). The L-1 (intracompany transferee) nonimmigrant visa classification permits multinational companies to transfer certain categories of employees from their foreign operations to their operations in the United States. Specifically, the L-1A classification is available for intracompany transfers of corporate managers and executives, while the L-1B visa classification enables intracompany transfers of employees who possess “specialized knowledge.” Federal regulations define “specialized knowledge” as “special knowledge possessed by an individual of the petitioning organization’s product, service, research, equipment, techniques, management or other interests and its application in international markets or an advanced level of knowledge or expertise in the organization’s processes and procedures.” Currently, most L-1B challenges revolve around this definition and how USCIS applies it. The L-1B Memo rescinds prior guidance and establishes new parameters to be followed by USCIS officers when reviewing L-1B petitions to determine if “specialized knowledge” exists. A petitioner can demonstrate “specialized knowledge” by establishing either one of two statutory criteria. Under the statute, an individual is deemed to have specialized knowledge if he or she has: (1) a “special” knowledge of the company product and its application in international markets; or (2) an “advanced” level of knowledge of the processes and procedures of the company. Therefore, an individual seeking L-1B classification should, as a threshold matter, possess: Special knowledge, which is knowledge of the petitioning organization’s product, service, research, equipment, techniques, management or other interests and its application in international markets that is distinct or uncommon in comparison to that generally found in the particular industry; or Advanced... read more

Treat Your Immigration Goals Like You Treat Your Finances – Plan, Plan, Plan

Whether you are an employer or an individual – when it comes to your immigration goals it pays to look at all of your options. Everyone takes their financial picture seriously — from the simplest budgeting of having to live pay check to pay check or the most complex financial strategies involving multiple advisors, i.e., banking,  financial planners – you get the idea. Immigration strategies can often affect the long term goals of any one person or company whether you are sponsoring a family member or an employee. Here’s some questions to think about: What do you want to accomplish? How long do you want the process to take? Who will benefit from your goals? Over the years we have seen clients who come to us with a focus on one particular strategy only to find out that their goal wasn’t the best bang for their buck. Granted the immigration processes aren’t always cheap, but careful planning can reap great results not just for the person seeking the status but for future planning as... read more

September 2015 Visa Bulletin: Major Retrogression for EB2 China and India

The U.S. Department of State has published the monthly “Visa Bulletin” for September 2015. The Visa Bulletin is a government publication, the primary purpose for which is to provide an updated waiting list for immigrants that are subject to the immigrant quota system. Usually the cut-off dates on the Visa Bulletin move forward in time, but not always. Demand for visa numbers by applicants with a variety of priority dates can fluctuate from one month to another, with an inevitable impact on cut-off dates. Such fluctuations can cause cut-off date movement to slow, stop or even retrogress. Visa retrogression occurs when more people apply for a visa in a particular category or country than there are visas available for that month. Retrogression typically occurs toward the end of the fiscal year as visa issuance approaches the annual category or per-country limitations. Sometimes a priority date that meets the cut-off date one month will not meet the cut-off date the next month. When the new fiscal year begins on October 1, a new supply of visas is made available and usually, but not always, returns the dates to where they were before retrogression. The September 2015 Visa Bulletin shows slight forward movement in most categories, with some exceptions. Specifically, employment-based second preference (EB2) for individuals born in mainland China and individuals born in India shows a significant retrogression. On September 1, 2015, EB2 for individuals born in mainland China will retrogress from December 15, 2013 to January 1, 2006, and EB2 for individuals born in India will retrogress from October 1, 2008 to January 1, 2006. It is critical for... read more