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08-14 01:40 PM
I recently received an inquiry at my San Francisco immigration law office from an "employer" who recently discovered that a person whom he had hired as an independent contractor was in the United States illegally. The employer had not originally known that the "employee" was illegal because independent contractors are exempt from the requirements of the Immigration Reform and Control Act (*IRCA*) (https://www.oig.lsc.gov/legis/irca86.htm) that require an employer to verify that an an employee is authorized to work in the United States. The "employer" wanted to explore the options of legalizing the contractor. While thinking about the options, I became interested in how the law defines an independent contractor.
According to 8 Code of Federal Regulations Section 274a.1(j) (http://www.californiaimmigrationlawyerblog.com/8cfr274a.1.pdf) an independent contractor is an individual or entity who carries on an independent business, contracts to do a piece of work according to their own means and methods, and are subject to control only as to results.
The decision of whether or not someone is an independent contractor is determined on a case-by-case basis. Factors to be considered include whether the individual or entity:
supplies the tools or materials;
makes services available to the general public;
works for a number of clients at the same time;
has an opportunity for profit or loss as a result of labor or services provided;
invests in the facilities for work;
directs the order or sequence in which the work is to be done and determines the hours during which the work is to be done.
I began to wonder if people used independent contractors to get around the IRCA requirements. Apparently Congress thought about that as there is a regulation which states that an "employer" may not avoid the requirements of IRCA by hiring an independent contractor if a person or entity knowingly uses a contract or subcontract to obtain labor or services of an unauthorized alien. 8 C.F.R. �274a.5 (http://www.californiaimmigrationlawyerblog.com/8cfr274a.5.pdf).
More... (http://www.californiaimmigrationlawyerblog.com/2009/08/there_will_always_be_illegal_w.html)
According to 8 Code of Federal Regulations Section 274a.1(j) (http://www.californiaimmigrationlawyerblog.com/8cfr274a.1.pdf) an independent contractor is an individual or entity who carries on an independent business, contracts to do a piece of work according to their own means and methods, and are subject to control only as to results.
The decision of whether or not someone is an independent contractor is determined on a case-by-case basis. Factors to be considered include whether the individual or entity:
supplies the tools or materials;
makes services available to the general public;
works for a number of clients at the same time;
has an opportunity for profit or loss as a result of labor or services provided;
invests in the facilities for work;
directs the order or sequence in which the work is to be done and determines the hours during which the work is to be done.
I began to wonder if people used independent contractors to get around the IRCA requirements. Apparently Congress thought about that as there is a regulation which states that an "employer" may not avoid the requirements of IRCA by hiring an independent contractor if a person or entity knowingly uses a contract or subcontract to obtain labor or services of an unauthorized alien. 8 C.F.R. �274a.5 (http://www.californiaimmigrationlawyerblog.com/8cfr274a.5.pdf).
More... (http://www.californiaimmigrationlawyerblog.com/2009/08/there_will_always_be_illegal_w.html)
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YetAnotherDesi
12-25 12:13 AM
Friends,
I am currently working at a systems company based on my EAD (H1 has expired). PD is Jun 2006.
I intend to marry a woman who is currently on F1 visa. I would like to know if there are any pitfalls from immigration point of view.
I understand that she can get an EAD only when my PD becomes current.
Can she file her I-485 petition based on my approved I-140? If yes, would she continue in F1 status (or what will her status be?).
Any other potential pitfalls in this particular scenario?
Any pointers would be useful.
Thanks in advance.
MC
I am currently working at a systems company based on my EAD (H1 has expired). PD is Jun 2006.
I intend to marry a woman who is currently on F1 visa. I would like to know if there are any pitfalls from immigration point of view.
I understand that she can get an EAD only when my PD becomes current.
Can she file her I-485 petition based on my approved I-140? If yes, would she continue in F1 status (or what will her status be?).
Any other potential pitfalls in this particular scenario?
Any pointers would be useful.
Thanks in advance.
MC
anishNewbie
09-04 06:32 PM
Below are the 2 listed jobs.. I am currently working as 15-1051.00 Computer Systems Analysts for XXX comp... I have been working for more than 3 years.. They are planning to file my GC soon..
I know for a fact that you cannot count current employer exp for GC. If i start working for the same employer on 15-1031.00 Computer Software Engineers, Applications , is it more than 50% different in role so i can count my 3 years experience when applying my GC ??
Also do i have to file a new H1 for this 15-1031.00 Computer Software Engineers, Applications job from same employer ??
All Attorney/ Senior memeber.. please guide me on this..
15-1051.00 Computer Systems Analysts
Analyze science, engineering, business, and all other data processing problems for application to electronic data processing systems. Analyze user requirements, procedures, and problems to automate or improve existing systems and review computer system capabilities, workflow, and scheduling limitations. May analyze or recommend commercially available software. May supervise computer programmers.
15-1031.00 Computer Software Engineers, Applications
Develop, create, and modify general computer applications software or specialized utility programs. Analyze user needs and develop software solutions. Design software or customize software for client use with the aim of optimizing operational efficiency. May analyze and design databases within an application area, working individually or coordinating database development as part of a team.
I know for a fact that you cannot count current employer exp for GC. If i start working for the same employer on 15-1031.00 Computer Software Engineers, Applications , is it more than 50% different in role so i can count my 3 years experience when applying my GC ??
Also do i have to file a new H1 for this 15-1031.00 Computer Software Engineers, Applications job from same employer ??
All Attorney/ Senior memeber.. please guide me on this..
15-1051.00 Computer Systems Analysts
Analyze science, engineering, business, and all other data processing problems for application to electronic data processing systems. Analyze user requirements, procedures, and problems to automate or improve existing systems and review computer system capabilities, workflow, and scheduling limitations. May analyze or recommend commercially available software. May supervise computer programmers.
15-1031.00 Computer Software Engineers, Applications
Develop, create, and modify general computer applications software or specialized utility programs. Analyze user needs and develop software solutions. Design software or customize software for client use with the aim of optimizing operational efficiency. May analyze and design databases within an application area, working individually or coordinating database development as part of a team.
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gc28262
05-11 10:14 PM
This is standard message when USCIS receives an RFE response. I had the same message when USCIS received my I140 rfe response.
more...
balu_g
05-10 07:51 AM
He gets kicked out of the country.
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insbaby
08-11 04:55 PM
Congratulations!!.
The H4 process should be an easy one and first time, should be no problems. Not sure whether they will do Back ground check on a H4, till end of 2007 all of my friends got it pretty quick, in about 3 to 4 days.
They implemented PIMS after Nov 2007. So your H1 may get slight delay and not sure about new H4 rules.
The H4 process should be an easy one and first time, should be no problems. Not sure whether they will do Back ground check on a H4, till end of 2007 all of my friends got it pretty quick, in about 3 to 4 days.
They implemented PIMS after Nov 2007. So your H1 may get slight delay and not sure about new H4 rules.
more...
krishna_brc
07-02 05:43 PM
Tnks for the quick response. a couple more questions :D
1) Eligibility Status?
2)Please provide information concerning your eligibility status.
Do I need to put anything in there? Or I can just leave it blank?
I entered C (9) - Pending AOS as Eligibility Status.
1) Eligibility Status?
2)Please provide information concerning your eligibility status.
Do I need to put anything in there? Or I can just leave it blank?
I entered C (9) - Pending AOS as Eligibility Status.
2010 And just in case you are
veda
07-25 02:31 PM
I would like to request for info pass, let us say If I need it on August 2nd week how many days before I can login to info pass and take that.
In other words if I go an take Info pass today when can I get the erliest scheduled date?.
Thanks,
In other words if I go an take Info pass today when can I get the erliest scheduled date?.
Thanks,
more...
rajeshraipv
08-22 04:01 PM
full study is available at www.nvca.org
The study was commissioned by the national venture capital association, a reputed trade organization for the vc industry
The study was commissioned by the national venture capital association, a reputed trade organization for the vc industry
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vikki76
03-28 06:59 PM
Interesting comment on one of old BusinessWeek articles.It strongly highlights power an employer holds over H1-B employee.
http://www.businessweek.com/globalbiz/blog/bangaloretigers/archives/2006/11/us_software_tal.html
"'m not at all surprised that the first few comments on this post have been very skeptical of the skills shortage.
No matter how you feel about the alleged shortage, you have to acknowledge that the H1B gives the employer a remarkable amount of power over the employee's life. The employer bestows the right to live in the United States upon the employee, and often sponsers the employee's application for a green card. Changing employers is not impossible, but it is tricky and perilous.
As an American, I can quit my job and become a contractor. An H1B can't. If my girlfriend decides to move across the country for a new job, I can quit my old job and go with her. An H1B can't. If I decide I'm tired of programming, I can quit and apply to law school. An H1B can't. And, most importantly, if I think I'm talented and should earn well above market rate, I can go into my boss's office and negotiate with the knowledge that I'm free to find a better deal elsewhere. An H1B can't - unless, of course, he's willing to give up on his wait for a green card and return to his country of origin and start all over again.
While I'm not a protectionist in any way, I view the indenturedness of the H1B visa as an affront to everything America claims it believes about human and economic freedoms. No employer should ever have this kind of power over an employee.
Congress is perfectly capably of creating an employment category for foreign nationals that preserves freedom for the engineer who comes to America. They still haven't. Why? Well, the most likely explanation is that the corporations who lobby for this visa *enjoy* this power over engineers. And this, in turn, leads to work conditions that drive America's best and brightest away, into careers in law, medicine, finance, and so forth, exacerbating the very shortage that the visa was designed to address.
Unlike some of the posters here, I'm ok with the existence of skilled worker visas. But any increase should be off the table until basic human and economic freedoms are preserved for the worker. In America, you have the right to quit your job. Period. "
http://www.businessweek.com/globalbiz/blog/bangaloretigers/archives/2006/11/us_software_tal.html
"'m not at all surprised that the first few comments on this post have been very skeptical of the skills shortage.
No matter how you feel about the alleged shortage, you have to acknowledge that the H1B gives the employer a remarkable amount of power over the employee's life. The employer bestows the right to live in the United States upon the employee, and often sponsers the employee's application for a green card. Changing employers is not impossible, but it is tricky and perilous.
As an American, I can quit my job and become a contractor. An H1B can't. If my girlfriend decides to move across the country for a new job, I can quit my old job and go with her. An H1B can't. If I decide I'm tired of programming, I can quit and apply to law school. An H1B can't. And, most importantly, if I think I'm talented and should earn well above market rate, I can go into my boss's office and negotiate with the knowledge that I'm free to find a better deal elsewhere. An H1B can't - unless, of course, he's willing to give up on his wait for a green card and return to his country of origin and start all over again.
While I'm not a protectionist in any way, I view the indenturedness of the H1B visa as an affront to everything America claims it believes about human and economic freedoms. No employer should ever have this kind of power over an employee.
Congress is perfectly capably of creating an employment category for foreign nationals that preserves freedom for the engineer who comes to America. They still haven't. Why? Well, the most likely explanation is that the corporations who lobby for this visa *enjoy* this power over engineers. And this, in turn, leads to work conditions that drive America's best and brightest away, into careers in law, medicine, finance, and so forth, exacerbating the very shortage that the visa was designed to address.
Unlike some of the posters here, I'm ok with the existence of skilled worker visas. But any increase should be off the table until basic human and economic freedoms are preserved for the worker. In America, you have the right to quit your job. Period. "
more...
gcformeornot
02-03 11:34 AM
I know he had no problems with Visa renewal. I think they are asking many PM/TL/CRMs to comeback and work night shifts and still manage US clients from India......
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satyasaich
12-02 09:51 AM
For sure i can say that one can travel (if needed) just after applying 485. No need to wait until one gets the travel papers.However to enter in to the country again, one should have either a valid visa H1 or H4 visa stamp in the passport OR should present the travel documents related to 485 (which means some arrangements need to be done. say a person applied 485 on dec1st/06. left to india on Dec3rd/06. travel documents usually takes anywhere between 6-8 weeks. so these have to be sent to india sothat the person while coming back to US again, can present at port of entry)
Lawyers say as a matter of precaution.( For example there is a query to submit a passport copy once again etc;)
Once a person had applied for 485, till they get advance parole if they had gone out of US, the application will be dropped.
I did hear that if you are in H1 B then it is not the case, but lots of Lawyers are advising not to get out of country till the person gets advance parole.
I do remember seeing lots of discussion in one of the portals on this topic, I remember that counselor processing is the option in this type of case.
This is a complex situation, you should consult a lawyer.
Lawyers say as a matter of precaution.( For example there is a query to submit a passport copy once again etc;)
Once a person had applied for 485, till they get advance parole if they had gone out of US, the application will be dropped.
I did hear that if you are in H1 B then it is not the case, but lots of Lawyers are advising not to get out of country till the person gets advance parole.
I do remember seeing lots of discussion in one of the portals on this topic, I remember that counselor processing is the option in this type of case.
This is a complex situation, you should consult a lawyer.
more...
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GCKarma
07-08 12:32 PM
Gurus,
First of all sorry to open a new thread. My PD is March 06 EB2. My i-485 reached uscis on July 2.
Is it advisable to change jobs? I'm planning to join bearing point consulting comp where they would start GC only after one year. As you guys know consulting job is quite unsecured. Only advantage with the new company is career growth.
Or should I wait for the outcome of lawsuit
please advise
First of all sorry to open a new thread. My PD is March 06 EB2. My i-485 reached uscis on July 2.
Is it advisable to change jobs? I'm planning to join bearing point consulting comp where they would start GC only after one year. As you guys know consulting job is quite unsecured. Only advantage with the new company is career growth.
Or should I wait for the outcome of lawsuit
please advise
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sundeep14
07-14 04:56 PM
Thanks for quick responses..my worry is that USCIS should not put my 485 case in storage just thinkin that my 140 is not approved...though i have the approval in hand they have the online status as processin..i wonder how they follow procedure while approvin case...
more...
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martinvisalaw
08-12 02:02 PM
First, the letter you got is probably a standard local office interview letter, so that it assumes a marriage-based interview rather than employment-based. This happens often.
You should have an AC21 letter with you for the interview, to show that you continue to be eligible to adjust status.
You should have an AC21 letter with you for the interview, to show that you continue to be eligible to adjust status.
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coolpal
03-27 05:20 PM
I am no attorney... but from my knowledge you are OK.
The h1b rules state that once you loose your job, you have 10 days to find another way to keep you in status or leave the country... and your situation, even if it comes to a point where you have to agree that you were out of job for that 5 days is no problem at all.
cheers...
pal :)
The h1b rules state that once you loose your job, you have 10 days to find another way to keep you in status or leave the country... and your situation, even if it comes to a point where you have to agree that you were out of job for that 5 days is no problem at all.
cheers...
pal :)
more...
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Munna Bhai
07-12 07:47 AM
Hello,
Myself and my spouse are on H1b. I am on H1b(industry) and my Spouse H1b is through non-profit.
Please let us know how best we can be a backup for each other in case of any unavoidable circumstances.
a)If I get laid-off or fired, can I jump to H4 and then come back to H1b without being subjected to cap?
b)What are the other backup plans we can have.
thanks for your time.
-M
Myself and my spouse are on H1b. I am on H1b(industry) and my Spouse H1b is through non-profit.
Please let us know how best we can be a backup for each other in case of any unavoidable circumstances.
a)If I get laid-off or fired, can I jump to H4 and then come back to H1b without being subjected to cap?
b)What are the other backup plans we can have.
thanks for your time.
-M
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05-08 01:51 PM
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sk.aggarwal
08-05 08:44 PM
If it is not too urgent for you to visit India. I would recommend you reschedule your flight and do H1 in PP. Its just too risky to assume that you will get approval notice before your vacations ends and you will be able to schedule appointment and get stamping done. If I were you, would have postponed unless its absolutely urgent.
sreekanth
09-18 11:25 AM
Dear Friends,
My PD (EB3)is Dec-02. I have gone for Finger Printing twice now.
I see lot of reference to '45 Day letter' in the forum . I have no recollection of receiving the '45 Day ' letter so far.
Am I missing something here?
Can any one of you please explain what this letter is about?
Thanks,
Sreekanth
My PD (EB3)is Dec-02. I have gone for Finger Printing twice now.
I see lot of reference to '45 Day letter' in the forum . I have no recollection of receiving the '45 Day ' letter so far.
Am I missing something here?
Can any one of you please explain what this letter is about?
Thanks,
Sreekanth
Widget
09-21 05:57 PM
I meant ven if your case is approved.
Thanks for the reply. But I have not yet received the approval. I have just received the receipt of H1B transfer application, and I am worried if they would not approve H1B transfer application since middle name has a typo. Please reply.
Thanks for the reply. But I have not yet received the approval. I have just received the receipt of H1B transfer application, and I am worried if they would not approve H1B transfer application since middle name has a typo. Please reply.
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