New York Employment Lawyer Blog

U visas are designed to help victims of qualifying criminal activities who have suffered substantial physical or mental abuse. Individuals who receive U visas may remain in the United States for up to four (4) years and may eventually apply for lawful permanent residency. U Visas may be a significant tool for undocumented workers. The Wage and Hour Division of the U.S. Department of Labor will review and consider whether specific qualifying criminal activity and workplace abuses are appropriate for a U Visa. The Wage and Hour Division has stated that it will consider completing U visa certifications based on five qualifying criminal activities (listed below) when it detects them in the process of investigating violations of minimum wage and overtime rights.

1. Involuntary servitude
2. Peonage
3. Trafficking
4. Obstruction of justice; and
5. Witness tampering.

The U.S. Department of Labor will consider the following issues: (i) whether the qualifying criminal activity arises in the context of an employment relationship or work environment and there is a related, credible allegation of a violation of a law the Department of Labor enforces; (ii) if the petitioner alleges a qualifying criminal activity of involuntary servitude, peonage, trafficking, obstruction of justice or witness tampering; (iii) the petitioner has demonstrated that he or she has been, is being, or is likely to be helpful to law enforcement officials in any investigation or prosecution of the qualifying criminal activity; (iv) if another law enforcement agency is already engaged in the investigation of the qualifying criminal activity or would be in a better position to certify based on the facts presented; and, (v) whether completion of the U Visa Certification would assist the Department's investigation of a violation of a law that it enforces.
It is important to recognize that not every workplace abuse will qualify for a U Visa. For example, non-payment of overtime pay for two weeks most likely would not be a basis for a U Visa.

Our Employment Law Attorneys have represented clients before the U.S. Department of Labor's Wage and Hour Division and in the U Visa process and can help you learn and assert your rights - call now to speak with one of our experienced immigration U Visa lawyers at (800) 893-9645.

Continue reading "Analysis of New Government Protocols Announced for U Visa Form I-918" »

Q: I am an H-1B visa holder and work for a computer software company. Lately, I have noticed that my employer has hired several new people to do the same job I do, but they are B-1 visa holders and are being paid much differently than I am. Is this legal?

A: You ask a great question that not only affects all employees but could also be a violation of many state and federal laws. If you work in a company that employs or does business with H-1B or B-1 visa holders, know your company's responsibilities and your rights. Call our experienced Employment-Based Immigration Attorneys to help you determine if your employer is committing visa fraud and tax fraud.

There is a pending lawsuit in the media that will greatly affect your employment situation. Indian software giant Infosys Technologies ("Infosys") is being sued by Jack Palmer, an employee who refused to help the company obtain B-1 visas for temporary workers. Palmer, who is a principal consultant for the company, has alleged that Infosys systematically commits visa fraud and tax fraud to increase profits, and has threatened and retaliated against him for his whistleblowing.

Palmer has alleged that he attended a meeting in Bangalore, India where Infosys management discussed ways to "creatively" get around the H-1B limitations. Palmer was asked to write a letter stating that an "employee was coming to the United States for a meeting rather than to work at a job." When Palmer refused, he was threatened, harassed, and retaliated against.

A B-1 visa applies to temporary business visitors who come to the United States to conduct activities of a commercial or professional nature. For example, these could include consulting with a business associates, negotiating a contract, or attending business conferences. However, if you are here on a B-1 visa, you are not legally allowed to work at a full time job. B-1 visa rules also prohibit a U.S. employer from paying for a worker for obtaining a B-1 visa.

Infosys wanted to obtain B-1 visa workers because B-1 visas are much cheaper, faster and easier to obtain than an H-1B visa. Unlike an H-1B visa, the B-1 visa workers do not have wage requirements and are paid by the foreign entity. A B-1 visa holder also does not have their federal and state income taxes withheld. Given these differences, Palmer also alleged in his lawsuit that customers were overbilled for labor costs for the B-1 workers.

According to a filing with the Securities and Exchange Commission last year, Infosys is a major user and reported that 9,300 of its technology professionals in the U.S. held H-1B visas. Additionally, Infosys applied for 3,800 new H-1B visas last year.

Palmer's lawsuit exposes the visa and tax fraud occurring in many companies that employ H-1B and B-1 visa holders. When an employer uses a B-1 holder to perform an H-1B's job, he is cheating the government of state and federal income taxes. Also, by using low paid B-1 visa holders to perform the higher paid H-1B jobs, employers are committing visa fraud and overcharging clients. Employees who blow the whistle and report tax and visa fraud may be able to collect significant monetary damages. If you have observed tax or visa fraud being committed against the government at your place employment, call our experienced Whistleblower Atttorneys at Villanueva & Sanchala at (800) 893-9645 to help you decide if you have a whistleblower case.

Continue reading "Employee Blows the Whistle on B-1 and H-1B Tax & Visa Fraud at Infosys" »

Peri Software Solutions, Inc., a New Jersey based IT company, and its President, Sarib Perisamya, were issued significant penalties by the United States Department of Labor for alleged violations of the immigration provisions applicable to H-1B employees. In total, Peri Software and Mr. Perismya received penalties and fines close to 1.5 million dollars for unpaid back wages to over 150 employees. Under the H-1B visa immigration guidelines, Companies can hire foreign workers for limited terms to perform certain professional occupations such as IT programmers, engineers, and physicians. As part of the program, Companies must pay H-1B employees the same wage rates paid to U.S. workers who perform the same types of work or the prevailing wage rate in the areas of intended employment, whichever is higher.

According to the investigation, the Company failed to follow the program guidelines to pay the required prevailing wage to its H-1B computers analysts. Further, it was determined that the Company caused employees to sign under duress employment agreements which included unreasonable penalties if employees left employment. Not only did the Company fail to pay its H-1B employees, it sued them for breach of its unreasonable penalty provisions in the employment agreements. Due to the serious nature of these actions, the Company was also assessed a civil penalty of over $400,000.00 and it may barred from hiring H-1B employees in future years.

It is an outrage that Peri Software and other companies take advantage of H-1B employees who are new to the country and unaware of their legal rights. Our employment law attorneys have represented many H1-B employees to protect their rights and continue their employment without being harassed by unscrupulous employers. Call our attorneys now to discuss how we can protect your job, assert your employment rights and defend you in a lawsuit if your employer is trying to force you a pay penalty for leaving your job. Many of penalty provisions in these types of employment agreements may be unenforceable.

Continue reading "New Jersey based Software Company issued significant penalties for abusing H-1B workers by not paying back wages and trying to enforce unreasonable penalty provisions in employment agreements" »

It depends on the type of deductions. Employers often try to take advantage of H1-B employees with the hope that the H1-B employees will be too scared or uninformed to complain or bring a legal complaint. Below are some general guidelines.

According to the United States Department of Labor regulations (20 CFR Part 655 Subparts H & I), the following are some payroll deductions that are unlawful:

1. A penalty for the employee's failure to complete the full employment period. See Section 212(n)(2)(C)(vi)(I). Often employers try to disguise this penalty in an employment agreement as liquidated damages for non-competition provision. The employment transition period can be a stressful process for H1-B employees. Depending on the circumstances, this provision may be unenforceable and the employee may have rights to change employers.

2. Any part of the training and processing fee required by USCIS. See Section 22(n)(2)(C)(vi)(II).

3. Any part of the five-hundred dollar ($500) anti-fraud and detection fee required by the USCIS. Section 214(c)(12)(A)

4. Any deduction for the employer's business expenses that would reduce the employee's pay below the required wage rate. Some prohibited deductions include:

• Travel Expenses (however this does not include the employee's first trip to the United States);

• Tools and Equipment; and

• Attorney's Fees and expenses directly related to filing the Labor Condition Application.

Continue reading "I am an H1-B employee and my boss is deducting money from my salary? Are these deductions legal?" »