Most of the readers and authors of this blog are immigrants to the US. We all have a story, don’t we? The idea

The American Dream

that United States is the land of opportunity and education/work there is something I should aim for, was planted quite early on in my head. My parents regularly pointed out other kids that went to the US for work/study and portrayed it as a desirable thing. It is, honestly, but there is more to it. I was subjected to many interesting experiences - some good, some not so good, and some that I outright detest. I am going to talk about some of that.

One of my neighbors went to a prestigious college in India and then went for his Ph.D at MIT I believe. Trust me, I heard about that a MILLION times. Even an adult would get brainwashed with that kind of stuff, I was just a kid, what did I know?:)

I used to watch Everybody Loves Raymond and Friends at home back in Mumbai since my school days, so I guess I did have a pretty skewed opinion about what life in the US was about. I guess they don’t really have immigrants in these shows talking about the painful process of getting their green cards so there was no way to know about that ;).

My first memories of the process of preparing for the persuit of the American dream started after school when I needed to decide what I wanted to major in during high school. I chose science because I knew that’s what most people that went to study in the US did. Then I started college and in my third semester, some of the classmates were already memorizing word lists from Barron’s in preparation for the GRE. Starts with that one guy who has family in the US. Then it’s four or five people talking about. Before you know, EVERYONE in the class has a Barron’s under their desk. Peer pressure forced me to dig my nose into one of them as well, even though, by the time I was in the third semester, i wasn’t really sure if I did afterall want to leave my country for education or work. But I wasn’t thinking too much. I read the book and my parents and family encouraged it a lot, so there you go.  I am glad I at least did not got to a GRE preparation class like some of the other kids did. A waste of time and money in my opinion. Looking back, college days are perhaps the most fun I’d ever have in my life and spending that precious time memorizing word lists was such a painful thing. That’s where it starts. The GRE’s English section is pretty challenging. I wish it weren’t. I wish there wasn’t as much of a focus on the meaning of words. I really don’t need a vocabulory of 5000 words to communicate effectively, but the makers of the GRE tests don’t realize that.

OK, after three to four months of sleepless nights and practice tests, the red letter day finally arrives - the day of the examination. I walk in to the examination center and I am greeted rudely by this lady sitting there for some reason I don’t even remember. I was pretty intimidated then, not knowing how to react. Later, I realized that my test was on September 11, 2002, a year after the 9/11 attacks. Perhaps the reason for the irritable behavior on the lady’s part. Fine, I take my test, do OK, and think I’ve done it - I am half-way there. Oh, not really. The ugly side is yet to come.

Does this sound like your story?

Note: There is a poll embedded within this post, please visit the site to participate in this post's poll.

Related Posts:

• December 18, 2008 — Some new stuff @ endlesswait.com
• December 5, 2008 — A quick note about posting on endlesswait.com
• November 21, 2008 — How cool is it to write for money?
• September 4, 2008 — EB3 I-140 Processing Delay
• December 23, 2008 — Processing dates delay in December and other recent news
• November 13, 2008 — Congratulations Victor!
• November 13, 2008 — Sex, Lies, Videotape and Immigration
• November 4, 2008 — Obama Wins….at least at endlesswait.com
• November 3, 2008 — The state of legal immigration in the United States
• October 24, 2008 — Are USCIS processing dates a complete joke?

I was just thinking of a way to help the US economy uplift itself by filling its coffers and helping States such as mine (MA) from economic turmoil.

I was hoping they would charge us immigrants a  little more hire more people (creating jobs - adding taxes from the people) working on more I-140 and I-485 cases and allowing us smart people to create more jobs and build our business here in the USA.

I believe it would work out well for most of us as we get paid well compared to 50% of the US population. Also, we probably would shell out enough money to get us out of the rut we are stuck in as we go on our endless waiting.

I wish to send a more formal proposal to USCIS. What do you think?

Related Posts:

• October 6, 2008 — I-140, I-485, N-400 and I-765 Backlog Statistics for Year 2008
• December 19, 2008 — I got my I-140!!
• October 9, 2008 — I-140’s to be processed within 4 months from April 2009
• October 8, 2008 — A feasible solution to EB3 I-140s
• September 29, 2008 — 2 year EAD’s require I-140 approvals now
• September 26, 2008 — Finally a response from the USCIS for the I-140 processing delay
• September 24, 2008 — Two more EB3 I-140’s from NSC approved today
• September 23, 2008 — Want to talk to the USCIS Director?
• September 18, 2008 — 100 votes and counting…
• September 12, 2008 — One NSC EB3 I-140 approved today

More wait…that familiar thing…Usually each month, the USCIS releases new processing dates for its service centers between 15th and 20th of the month. This month, it’s 23rd already and no processing dates yet. It’s a different matter that we don’t really believe their processing dates, but it’s sort of this monthly routine now and they at least released it each month. This time, it’s not there at all. Way to go, USCIS…

How would USCIS react if we sent our payment for an application late by a few days. Would they still accept it? Why are we held to a different standard than their own, then?

This sounds to me like the Bailout fiasco - Banks that received billions of dollars of our money from the bailout recently and now decline to comment on or disclose how they are using that money. Hey hey hey, that’s OUR money that you came begging for and we want to make sure you are using it wisely. At endlesswait, our users voted that the bailout is not a good idea before it was even approved, though, only by a small margin.

Anyway, Obama recently chose Hilda Solis as the Secretary of the Department of Labor. Overall, Hilda Solis seems like a good pick, but seems to support the concept of Unions a little too passionately. We all know that unions have their pros and cons. And we know that it’s unions that caused the Big 3 American car companies to pay unreasonably high wages to their workers and keep jobs that are redundant or could be done away with. Capitalism succeeded in America for a reason. She is also a little too illegal-immigrant-friendly. She reportely made a statement in 2007 that “We are all Americans, whether we are legal or illegal”. It will be interesting to see how she deals with legal immigrants. Not much is known about her stand on that. We will be watching and will keep you updated.

Now that we have an new Deputy USCIS director (Michael Aytes from the famous Aytes Memo) and the new DOL chief pick, it’s time for a poll.

Note: There is a poll embedded within this post, please visit the site to participate in this post's poll.

Related Posts:

• November 13, 2008 — Sex, Lies, Videotape and Immigration
• December 18, 2008 — Some new stuff @ endlesswait.com
• November 4, 2008 — Obama Wins….at least at endlesswait.com
• November 3, 2008 — The state of legal immigration in the United States
• October 24, 2008 — Are USCIS processing dates a complete joke?
• October 21, 2008 — I-140 processing dates move forward….but how?
• October 6, 2008 — Prepare for more delay…
• October 1, 2008 — My Letter to AILA
• September 4, 2008 — EB3 I-140 Processing Delay
• September 3, 2008 — Invitation

FY-NA-LLY..after 557 days and nights of unreasonable wait, my I-140 was approved today. Got the damn automated email and was in a little bit of disbelief for a moment. I know I am making it sound like too much of a deal here, but those of you that have waited with me and continue to wait for immigration applications to get approved will understand.

Reactions?

My American citizen colleague at work: Poor guy, he knows too much about legal immigration issues and the condition of roads in Mumbai by now. He was happy for me and surprised I am not jumping up and down today. Sorry dude, the journey is not over yet, I still have the green card, citizenship, etc. etc. to shoot for - you will continue to receive unsoliticed information about Davids (us) and the Goliath (USCIS).

Wife: She jumped up and gave me a tight hug. She has had to listen to my painful complaints about USCIS EVERY DAY. Took her out for a nice dinner and tried my best not to talk about this, did stumble a couple of times, but overall, I did pretty good.

You guys are the next ones to know. Now I just hope USCIS does not mess up and send it to the wrong address like they’ve done with so many others in the past. I updated my address on their site well in advance of my recent move, so hopefully, I’ll be OK. So, those of you that move homes, do not forget to update your address via the ONLINE AR-11 form PLUS update your address for each petition that is pending for you. Also, this needs to be done for each petitioner separately (so you, spouse, kids separately). I know some that forgot to do the second part or did not do it for each petitioner and ended up missing their mails from USCIS.

There are still plenty of January-July 2007 applications that are not approved yet. I feel you guys’ pain, some of whom have been laid off. We understand your pain. Just keep trying and keep hating the wait.

Related Posts:

• January 2, 2009 — Economic Help and Depression Relief a Solution to I-140
• October 9, 2008 — I-140’s to be processed within 4 months from April 2009
• October 8, 2008 — A feasible solution to EB3 I-140s
• October 6, 2008 — I-140, I-485, N-400 and I-765 Backlog Statistics for Year 2008
• September 29, 2008 — 2 year EAD’s require I-140 approvals now
• September 26, 2008 — Finally a response from the USCIS for the I-140 processing delay
• September 24, 2008 — Two more EB3 I-140’s from NSC approved today
• September 23, 2008 — Want to talk to the USCIS Director?
• September 18, 2008 — 100 votes and counting…
• September 12, 2008 — One NSC EB3 I-140 approved today

It’s been crazy the last few days, finally decided to delay dinner to find the time to blog tonight! Got the new Rules for posting at Endlesswait.com added to the Invitation page. Added some instructions for posting on the blog to that same page as well. And installed a Wordpress plugin that allows the administrators to moderate any posts before they get published.

So, YAY, we are all set for now. New authors are welcome to register and post their thoughts, opinions and news related to legal immigration.

Personally, I’ve wanted to post about a whole range of recent developments in the USCIS including the continuing delay in I-140 processing and a multi-part post about the painful journey that legal immigrants go thorough to become a citizen eventually. I think it will make a good read. Just don’t find the time for it, but I know that’s just an excuse.

Thanks for everyone that’s participated in the site and the few that have written to me with content and feedback at news@endlesswait.com. Highly appreciated.

Related Posts:

• December 5, 2008 — A quick note about posting on endlesswait.com
• September 3, 2008 — Invitation
• January 6, 2009 — An Immigrant’s Story - Part 1 - The first time..
• December 23, 2008 — Processing dates delay in December and other recent news
• November 21, 2008 — How cool is it to write for money?
• November 13, 2008 — Sex, Lies, Videotape and Immigration
• November 3, 2008 — The state of legal immigration in the United States
• October 24, 2008 — Are USCIS processing dates a complete joke?
• October 21, 2008 — I-140 processing dates move forward….but how?
• October 6, 2008 — Prepare for more delay…

Introduction:

Most employers believe that the most difficult part of the H1-B Visa process is the H1-B Visa approval process.  However, seasoned immigration attorneys realize that after the U.S. Citizenship and Immigration Services (“USCIS”) approves an employer’s H1-B Visa application, maintaining the valid H-1B Visa is arguably even more difficult.

This is where an experienced immigration attorney becomes a company’s invaluable asset.  Employees and their employees must adhere to strict H1-B Visa guidelines that carefully define an H1-B employee’s place of employment, job duties, and hours of employment.  A change or addition to any of those categories can potentially trigger a loss of status, or even subject the employer to liability.

Therefore, this article explores (1) possible situations where an employer must notify the USCIS of changes in a H-1B employee’s duties, (2) whether a new or amended H-1B petition must be filed, and (3) how an employer can properly terminate an H-1B employee to avoid liability.

1. Material Changes – When must an Employer File a New or Amended H1-B Petition

The USCIS requires employers to notify the USCIS of “material changes” in an H1-B holder’s employment.  Though a material change is sometimes defined as a substantial alteration of terms or conditions, it is best to take a case-by-case analysis of whether the USCIS must be notified.  Some examples that constitute a material change include:

• Place of Employment:
Typically, an H-1B employee must work at the location that is listed in his or hers Labor Condition Application (“LCA”).  If an employer wants an employee to work at a location other than the one mentioned on the LCA, the employer must notify the USCIS and file a new LCA before the employee begins work at the new location.  Otherwise, the court may decide that the employee worked without proper authorization.  Note that an employer does not have to notify the USCIS if the new workplace is “within the area of intended employment” listed on the LCA, or if the employee’s job duties require constant travel – i.e. a circus employee.

• Job Duties
Since an H-1B employee is employed in a “specialty occupation”, an employer must notify the USCIS of any changes in an H-1B employee’s duties that alter or change the specialty occupation.  The USCIS will determine if there is a material change in the employee’s specialty occupation by considering such factors as new duties and whether these changes place the employee in a different prevailing wage category.

• Hours of Employment
Generally the employer does not have to contact the USCIS of a change in an H-1B employee’s hours unless it falls below full-time employment (usually at least 35 hours a week).  An employer does have an option of temporarily laying off an employee, but the employer still must pay the employee the prevailing wage.  Otherwise, the employer may be civilly liable.

• Employer
Once an employee is granted H-1B status, the employee can work for a new employer (besides the initial sponsor) provided that the new employer immediately notifies the USCIS and files a new LCA before the employee joins the new company.

2. Should I File a New or Amended H-1B Petition?

A new employer should file a new H-1B and LCA before the employee joins the new employer. Though the USCIS has not expressly stated any timelines about amended H-1B petitions, it would be prudent for the employer to file before any material change occurs to avoid possible liability or immigration problems.

However, not all changes in employment conditions must be reported to the USCIS.  These include:

• Name of the Employer
There is no need to immediately notify the USCIS if the sponsoring employer has merely changed their name, as long as the employee’s job duties remain unchanged.  The employer can simply notify the USCIS when they file for the employee’s H-1B extension.

• Changes in Wages
An employer does not have to notify the USCIS of a change in an employee’s wages unless it falls below the required prevailing wages.

• Corporate Restructuring – The “Successor-in-Interest” Doctrine
In today’s business world, mergers, acquisitions, or consolidations have become quite common.  An employer is not required to notify the USCIS of such an occurrence provided (1) the employee’s duties remain unchanged and (2) the new corporate entity that resulted from the merger agrees to take on all immigration related obligations and liabilities.  This is known as the “successor-in-interest” doctrine.

Note that though the new corporate entity does not have to file a new H-1B petition, the new employer must meet the following requirements before the corporate change: (1) the new employer must keep a record of which H-1B employees transferred to the new employer, and (2) the new employer must update its public access files – this includes (a) each affected LCA number, (b) how the new employer’s wage system complies with the H-1B requirements, (c) the new employer’s identification number, and (d) a sworn statement by an authorized official from the new company agreeing to assume all immigration obligations and liabilities.

3. Termination of Employees – Protecting Employers from Liability

Because an employer has to notify the USCIS of any material changes in an H-1B employee’s duties, this naturally includes situations where the employer fires or lays off an employee before the H-1b expires.  An employer is not discharged from the employer’s obligations or duties (included paying wages) by merely terminating the employee; a “bona fide termination” must occur.  A bona fide termination requires (1) formal notice to the USCIS that the employee was fired, (2) that the employer offer to pay the terminated employee’s “reasonable costs” of returning home.

Note that the termination is effective as soon as the USCIS receives notice, not necessarily the date the USCIS revokes the employee’s H-1B Visa.  Also, though an employer must offer to help pay for the employee’s return trip home, there is no requirement that the employer also pay for the costs of relocating the H-1B holder’s family or property.  Once a bona fide termination occurs, the H-1B employee is in unlawful status and therefore advised to return to his or her home country.  If a company has any questions about whether they complied with this requirement, they should consult their attorney or our office on  800 540 7125 .

Conclusion:

As detailed above, once an employer’s H-1B petitions are approved, it must be carefully monitored to comply with USCIS requirements.  A company’s attorney can alert the company of when USCIS notification is needed by consulting (1) immigration statutes, (2) Department of Labor (DOL) regulations, (3) case law, and (4) advisory memoranda.  Because of the complications that may arise, it is best for a company to err on the side of caution and immediately notify their attorney if they think that a change may be material.

The information contained in this article is provided for informational purposes only, and should not be construed as legal advice on any subject matter. No recipients of content from this article, clients or otherwise, should act or refrain from acting on the basis of any content included in the article without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from an attorney licensed in the recipient’s state.

Random Posts

• September 25, 2008 — Obama responds to immigration survey questionnaire
• November 7, 2008 — December 2008 Visa Bulletin Published
• September 10, 2008 — Estimated unused visa numbers since 1990 - 500,000!!
• October 24, 2008 — Are USCIS processing dates a complete joke?
• September 23, 2008 — Is it OK to change careers after getting an EB Green Card?
• September 16, 2008 — Filipinos wait 22 years to get Green Card
• September 24, 2008 — Two more EB3 I-140’s from NSC approved today
• October 17, 2008 — USCIS response to I-140 backlog, premium processing and other questions
• December 5, 2008 — If you have ever been ‘benched’, I’d love to hear from you; thanks
• November 3, 2008 — The state of legal immigration in the United States

In the last few days, I’ve received several inquiries from Law firms about posting on Endlesswait.com. Some have also registered and made posts on the blog. Though I am flattered, this means that we are going to need some rules and some changes.

Until now, the default status of anyone registering at this site was an “Author”, meaning that anyone that registers at the site could immediately start writing posts without any oversight or approval. The intention was for people to be easily able to contribute to the site and express their thoughts without any waits (as you can tell, we hate the word wait around here). However, this site was not created for anyone to advertise their services (at least not on the blog posts themselves).

I am working with a couple of friends to come up with a set of rules that all authors will need to follow. In the meantime, until I have that ready, all new users that register into the site will not be able to write posts until they have been approved as an author. I am also working on setting up an approval process for posts so that posts with advertisements either get rejected or modified before they are posted. I modified some of the recent posts to remove the ad content from them. I apologize for any inconvenience that this may cause, but it’s a necessary step to stay true to the site’s mission.

I am also coming up with a separate plan for advertisements/sponsorship that should be live in a few days as well. Hope that will help separate content from advertisement.

If you have any thoughts or comments on how this can be done effectively, please let me know. Your thoughts and opinions are important to making this site useful to everyone. Our goal remains the same - to make this the place where legal immigrants can share their experiences and express their opinions about the system. Thank you!!

Related Posts:

• December 18, 2008 — Some new stuff @ endlesswait.com
• January 6, 2009 — An Immigrant’s Story - Part 1 - The first time..
• November 21, 2008 — How cool is it to write for money?
• September 3, 2008 — Invitation
• December 23, 2008 — Processing dates delay in December and other recent news
• November 13, 2008 — Congratulations Victor!
• November 13, 2008 — Sex, Lies, Videotape and Immigration
• November 4, 2008 — Obama Wins….at least at endlesswait.com
• November 3, 2008 — The state of legal immigration in the United States
• October 24, 2008 — Are USCIS processing dates a complete joke?

HI All,

I’m new to this blog, and have just registered; I’ve been practicing immigration law for 25+ years.

Those of you who do not already know this, the structure of the U.S. immigration system, the laws and regulations involved, make absolutely no sense (especially to any thinking, smart, or logical individual).

Part of the problem is that we have a system in place designed to ‘immigrate’ many less people, that is, it was not designed for ‘backlogs’. The best example of this is why would someone married to a Permanent Resident have to be separated for years from their spouse? The law was never meant to be applied with a wait - and yet Congress has never revisited the problem. Who or what system keeps people in love apart?

So too on the skilled workforce side of the equation. Why would the government be involved in who a U.S. company can and cannot hire? Of course, making certain that the ‘prevailing wage’, a U.S. wage, is paid makes sense, as does a quick ’security check’. But to force a U.S. business to hire a less qualified American, over a more qualified non-citizen that they actually want to hire…. is that free enterprise and capitalism?

In fact, it’s the opposite and a sure way to stifle innovation and the development of leading edge technologies (and the inevitable expansion and creation of new and good jobs that Americans can compete for, but should not necessarily be entitled to).

And, yes, I understand the irony now unfolding with Congress doing its best to handout “billions, if not trillions” of dollars to failed and mismanaged businesses (it’s the greatest of ironies and absurd on its face).

Of course, the same is true of the H1b program. A program set up to help business temporarily fill needs with highly skilled foreign born professionals (paid at or above prevailing wage). Yet, crazily, we don’t provide enough visas to fill the demand - a year’s allotment runs out in a few days!

Random Posts

• September 25, 2008 — Obama responds to immigration survey questionnaire
• September 29, 2008 — 2 year EAD’s require I-140 approvals now
• October 21, 2008 — I-140 processing dates move forward….but how?
• September 5, 2008 — Write Your Congressperson regarding the I-140 Processing delay
• September 4, 2008 — EB3 I-140 Processing Delay
• September 23, 2008 — Want to talk to the USCIS Director?
• November 7, 2008 — Immigration to Go Paperless
• December 18, 2008 — Some new stuff @ endlesswait.com
• September 6, 2008 — I guess it takes a while to get indexed by Google & Murthy Forum Quirks
• December 4, 2008 — USCIS and Employers are out of control

i write on behalf of my children who have witnessed the chaos that the sadly broken immigration service call the ‘Green card process’. The stark reality is that there is a continious barrage of hidden traps and pitfalls that hit average families trying to fulfill dreams and careers in this so called free democratic country.

Contrary to popular belief the professional approach many of the elite Employment based applicants adopt, unfortunately is far from matched by USCIS and indeed the legal representation employed by them.

my personal story is of no importance other than it highlights the very worse this system is capable of.

the highlights

1} under H1B visa an employer took advantage by charging me for visa transfer they did not do…. costs $1800………….. i think this is called embezzlement.

2) under “at will contract ” fired for not working on a Sunday cost $21,000 moving etc……………. this is called unfair dismissal

3) under H1B visa not paid the correct overtime payments costs $8400 over 2 years…….. this is called theft

4) under H1B visa salary cut %5 with one weeks notice resign and move costs $17,000…….. this is called deception

5) I-140………… from the above i paid dearly for this document…….. this is called fact

6) i-485 for my family filed costs $3500 the highlight was medical for four $974 for 14 mins with the Doctor ………..this also a kind of theft, deception and fraud?

7) USCIS made a mess of my application and mixed it up with my son took over a year to put right ………..this is plain incompetence

unable to file for EAD extension until-485 sorted out. fired by employer expired EAD costs $12,000 so far……………this is a tragedy

From the above you can see my own story has been an expensive one that has left my family in a disillusioned state that will only end when we leave this place. My wife and sons have become aware that not all things are straight forward and i cannot lie to them saying one day we will be fine here.

Many legal immigrants carry the scars and the wounds lie very close to the surface.

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• September 4, 2008 — EB3 I-140 Processing Delay
• September 29, 2008 — 2 year EAD’s require I-140 approvals now
• September 5, 2008 — Write Your Congressperson regarding the I-140 Processing delay
• September 26, 2008 — Finally a response from the USCIS for the I-140 processing delay
• January 2, 2009 — Economic Help and Depression Relief a Solution to I-140
• November 13, 2008 — Sex, Lies, Videotape and Immigration
• September 23, 2008 — Want to talk to the USCIS Director?
• November 21, 2008 — How cool is it to write for money?

You would never know whats circulated inside USCIS, but he is a peak to what the those memos might be.

1. Publish incorrect information on the priority dates: In August, USCIS went back on its published dates for TSC. And also every other month after that for most of the centers.
2. Send applications to district offices to reduce work load, even when district offices are not supposed to process I-140 applications.
3. Oh, pretend that I-140’s are not supposed to be processed until the priority date for the I-485 application is not current.
4. Increase the fee for the applications promising fast turn around time. Complain that the fee increase brought in more applications than expected and therefore increase the processing times.
5. Promise in every ombudman meeting that steps have been taken to reduce the processing times, but don’t bother with it untill the next meeting.

USCIS tried very hard to find ways to not process I-140s during the past 15 months.  Law might have been broken a couple of times, you would never know without understanding the intricacies of the complicated immigration law. The information above has been pieced together based on information provided by users on various forums. Feel free to add to these in the comments.

Random Posts

• November 13, 2008 — Congratulations Victor!
• November 19, 2008 — New Processing Dates - the lies keep coming..
• November 21, 2008 — How cool is it to write for money?
• November 7, 2008 — December 2008 Visa Bulletin Published
• December 18, 2008 — Some new stuff @ endlesswait.com
• September 12, 2008 — One NSC EB3 I-140 approved today
• December 3, 2008 — What to do if Immigration Services Is Not Making A Decision On Your Case
• September 12, 2008 — Why are we doing this?
• December 5, 2008 — A quick note about posting on endlesswait.com
• December 19, 2008 — I got my I-140!!