January 2013 Newsletter

 Am Flag


January 2013 Newsletter                               1-877-479-4USA

Form I-9 Penalty Amounts Imposed by ICE Must Be Based on Specific Factors 


Form I-9 violations imposed by ICE can result in devastating fines to your business. Yet, when ICE raises fine amounts for aggravating reasons, this must be based upon several factors. This was recently underscored in a recent court case heard by the EOIR in US v. March Construction. This case emphasized the rule that the burden of proof rests on the government to establish the penalty and liability, and it must therefore prove aggravating factors by a preponderance of the evidence. In order to assess a penalty, there are several factors to be considered, which are:

  • The size of your business
  • The good faith of your business to comply
  • The seriousness of the violation
  • Whether the employee was an unauthorized immigrant
  • Whether your business has previous violations
  • The ability of your business to pay the fine

Each of these aggravating factors must be based on specific facts supported by evidence in order to justify enhancement of a fine.

Read more here

USCIS Accepts New H-1B Petitions in April:

Get Ready To File Before Visas Run Out!


New H-1B visa numbers will become available starting April 1, 2013. Only 65,000 H-1B visas will be available this year plus another 20,000 for those with a master's degree or higher from a US college or university. The visas allow employment to start as early as October 1, 2013.


If your H-1B petition is filed late after these visa numbers are already gone, a new visa number while not become available to you until April 2014.


DHS Says DACA Recipients Are Lawfully In The US: Could Also Get Drivers Licenses

The Department of Homeland Security said Friday that under the deferred action for childhood arrivals program, undocumented immigrants are now considered to be lawfully present in the United States. This could mean that states could be forced to issue drivers licenses to deferred action should be as well, some attorneys say. States like Arizona currently do not issue driver licenses to undocumented immigrants because under Arizona law, they may only be issued to those authorized to be in the US.
AC21: Extend Your H1B Beyond Six Years  
To determine whether you can extend your H-1B beyond six years, and by how much time, it is necessary to conduct a careful review of all your prior approval notices, prior visas, all dates of departure and entry, dates of any status changes, while also taking into account all previously filed labor certification applications and I-140 petitions. In order to make a correct determination of exactly how much time you may have available to you for an extension of your H-1B visa beyond the six-year limit, it may be critical to retain a prudent immigration attorney who can make a proper analysis of your case. If you have questions about H-1B visa extensions beyond six years, please contact our immigration attorneys or call The Law Firm of Shihab & Associates, Co., LPA at the nearest office close to you to consult with an attorney.
You May Qualify For the L-1B Visa If You Have "Specialized Knowledge"  

L-1 visas are available to employees of an international company with offices in both the United States and abroad for those with specialized knowledge. There are two separate criteria for specialized knowledge:

Special knowledge of the company product and its application in international markets, or

An advanced level of knowledge of the processes and procedures of the company.


Knowledge is "special" where it "surpasses the usual, is distinct among other of a kind, and is distinguished by some unusual quality, uncommon; noteworthy." Thus, based on this definition of special, "specialized knowledge" is "different from that generally found in the particular industry. The knowledge need not be proprietary or unique, but it must be different or uncommon."


Knowledge is defined as "advanced" where it is "highly developed or complex, at a higher level than others," and "beyond the elementary or introductory; greatly developed beyond the initial stage." Thus, based on this definition of "advanced," the knowledge "need not be held narrowly throughout the company, only that the knowledge be advanced."


Possible characteristics include:

  • Possessing knowledge that is valuable to the employer's competitiveness in the market place;
  • Being qualified to contribute to the United States employer's knowledge of foreign operating conditions as a result of special knowledge not generally found in the industry;
  • Having been utilized abroad in a capacity involving significant assignments which have enhanced the employer's productivity, competitiveness, image, or financial position;
  • Possessing knowledge which, normally, can be gained only through prior experience with that employer; and
  • Possessing knowledge of a product or process, which cannot be easily transferred or taught to another individual.

Gus Shihab, Esq.
In This Issue
Form I-9 Penalties Must Be Based on Specific Factors
USCIS Accepts New H-1B Petitions in April
DHS Says DACA Recipients Are Lawfully In The US
AC21: Extend Your H1B Beyond Six Years
You May Qualify For the L-1B Visa If You Have "Specialized Knowledge"
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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.

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

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