February 2013 Newsletter

 Am Flag


February 2013 Newsletter                               1-877-479-4USA

Expect the H-1B Visa Cap

To Be Reached Quickly This Year 


The Law Firm of Shihab & Associates predicts that the H-1B visa cap will be reached close to if not on April 1st, 2013. It is our professional opinion that businesses seeking to hire workers in a specialty occupation for the 2014 fiscal year should strive to file cap-subject petitions on April 1st, 2013 wherever possible. While it is difficult to postulate that the 2014 cap will be reached on the first day of filing, we are advising our clients against taking any chance of losing out on valuable human resources needed for the coming year and to be prepared to file cap subject H-1B visas on the first business day of April.

Read more here

Business Plan May Prove Crucial

For E2 & L1 Visa   


How does an immigration business plan help obtain an E2 visa? The immigration officer will judge the applicant's business on its ability to generate employment whilst being profitable. The business plan for the E2 visa reflects on how the investment translates into a profitable enterprise that helps to generate employment. It will also provide the applicant's credentials to demonstrate how the applicant is qualified to establish his/her venture and manage a business.


How does an immigration business help plan to get an L visa?

While not required for an L1 visa application, an L1 business plan provides the applicants with the opportunity to demonstrate clearly how the workings of the business meet the L1 visa requirements, besides facilitating the job of the immigration officer. The L1 business plan demonstrates how the applicant can implement a management structure that will smoothly transmit a start-up into a well-established business. Ultimately, the applicant will spend his time efficiently managing managers as opposed to delegating directly to the employees delivering the products and services to clients.

Important News for Negotiating

I-9 Violation Settlements with ICE  


Employers charged by ICE with I-9 paperwork violations may seek to resolve the matter through settlement negotiations. However, unlike other government agencies, ICE prefers not to include non-admission causes in its settlement agreements. The non-admission clause is beneficial because not only is the fine reduced, the employer does not admit to any wrongdoing and the charges are dismissed.


Entering into a settlement with an admission of wrongdoing may cause severe future consequences to an employer. Rather than having charges dismissed, the employer now has a violation on its record. And any future violations would be treated as repeat violations resulting in heavier penalties.


Although it may be difficult to get ice to include a non-admission clause, it can be done. This is illustrated in the recent court case of United States of America v. California Mantel, Inc, 10 OCAHO no.1168, (Feb. 8, 2013). Here, once ICE had agreed on terms of settlement, ICE then sought to include an admission of guilt. The employer's attorney prevailed by filing a Motion to Enforce Settlement Agreement with the OCAHO asserting that a settlement agreement had already been reached between the employer and ICE that did not have an admission of wrongdoing.
Recent Court Case Shows Altering PERM Job Ad Language Can Result In Denial   

During the Application for Permanent Employment Certification (otherwise known as PERM), is imperative to carefully draft the language used in the advertisements and job postings. This was underscored by the Board of Alien Labor Certification Appeals (BALCA) in its recent decision on February 6 that affirmed the denial of PERM certification due to the way the advertisement was drafted, in the matter of Oracle America, Inc.


Originally, the Certifying Officer (CO) denied the employer's PERM application because of the language used in the Notice of Filing (NOF), otherwise known as the internal job posting, BALCA affirmed the CO's denial holding that the job posting contained a job requirement that was not indicated in the ETA Form 9089.


BALCA disagreed with the employer's argument. The language used by the employer in the job posting did not imply that the requirement was not for all the open positions because it could be interpreted that the sentence meant that travel may be required for all positions, not just for some.


When drafting the language of the job posting, if language is added or changed from the language used in the ETA Form 9089, it is absolutely imperative that careful attention is given to PERM requirements because even a very small change in wording or addition in wording can result in disaster when the PERM application is denied.

How Much Persecution Is Enough

To Qualify For Asylum?  


How much torture or other mistreatment must you show in order to qualify as having been "persecuted" as defined in the immigration law? The answer is that it would seem there really is no bright line definition. Rather, a foreign national's asylum case could likely depend upon the subjective opinion of what a government official thinks persecution does or doesn't mean. When presenting an asylum case, don't simply rely that a government official will sympathize with your situation. It is necessary to properly research similar successful cases in order to have a strong case.


An example of this is illustrated in a recent case decided by the US Court of Appeals for the 11th Circuit in Shi v. US. In this case, the Petitioner Jiaren Shi was originally denied asylum by the Immigration Judge (IJ) on the basis that he had not established that he had suffered past persecution.


The applicant was arrested in China for attending Christian church at his father's home, held by police for seven days, interrogated, subjected to physical abuse, and warned not to be involved in such "illegal meetings" in the future. While in custody, police slapped his face, kicked his chair out from under him, and threatened to beat him with a baton. After one interrogation session, police handcuffed him to an iron bar outside and left him there overnight in the rain, after which he became ill for days.

His asylum case was denied, yet the court overturned the denial on appeal. A government official may not be impressed with the mere fact that an asylum applicant was physically abused and detained by police as a result of his or her religious belief. That government official may agree that it is bad, but may not agree that is "extreme" enough to be called persecution. Don't rely on the subjective opinion of a government official. Do your legal research and come prepared to show that other cases similar to yours have been decided in your favor.


Gus Shihab, Esq.
In This Issue
Expect the H-1B Visa Cap...To Be Reached Quickly This Year
Business Plan May Prove Crucial For E2 & L1 Visa
Important News for Negotiating I-9 Violation Settlements with ICE
Recent Court Case Shows Altering PERM Job Ad Language Can Result In Denial
How Much Persecution Is Enough To Qualify For Asylum?
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US Immigration laws are currently in state of constant flux and change.  Visit the Shihab Immigration Blog at least once a week to keep abreast of this complex and ever changing area.  
Call our law firm today for a free in depth analysis of your immigration law issue.

1-877-479-4USA (4872)
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Meet Our Legal Team

Gus Shihab, Esq.
The Law Firm of Shihab & Associates, Co., LPA
877-479-4USA (4872)

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