Blog Feeds
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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newbee7
07-15 08:04 AM
The whole process in complicated and needs a lot of back and forth btwn hr/attorney. Most attorney's will take 4-6 months at min.
gc_chahiye
09-19 05:21 PM
if i use EAD for a part time job, does the H1B visa status become invalid?
yes. look up the archives, this has come up quite a few times. Some people say going from EAD to H1 is a one-way street and coming back requires new H1 subject to cap. Many others (including my attorney) say that you can come back on new H1 (or even existing H1 petition if its not expired) without being subject to quota/cap. Reactivating the H1 does require a trip out and back into the US.
yes. look up the archives, this has come up quite a few times. Some people say going from EAD to H1 is a one-way street and coming back requires new H1 subject to cap. Many others (including my attorney) say that you can come back on new H1 (or even existing H1 petition if its not expired) without being subject to quota/cap. Reactivating the H1 does require a trip out and back into the US.
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ddd27
10-26 02:39 PM
Thanks for your reply ... did anyone go to DC consulate for a walk-in kind of renewal ?? am planning to take an off next week for this purpose.
thanks
thanks
more...
chanduv23
06-14 11:19 PM
My AOS was denied few months 4 months ago after I switched using AC21. Since my current employer has their own attorney (Pappas Lenzo in Boston) they filed for MTR and it is still pending. I was on my H1 which will expire in another 2 months. The attorneys are saying it takes time for MTR to be successful. But was not sure it would take this long.
Anyone has experience who filed I-485 MTR and it was successfull through this attorney.
Please PM me if you do not want to share the experience in public.
After 90 days, you can open a service request. On another note if it is a AC21 write to Ombudsman too. Contact your congressman, they also help.
Do send your story to IV as IV ios collecting such stories
Anyone has experience who filed I-485 MTR and it was successfull through this attorney.
Please PM me if you do not want to share the experience in public.
After 90 days, you can open a service request. On another note if it is a AC21 write to Ombudsman too. Contact your congressman, they also help.
Do send your story to IV as IV ios collecting such stories
WeShallOvercome
08-22 04:43 PM
It is a case to sign in native language...
Well, if you forgot to fill the native language thing but signed the form, you don't have to worry about anything. Although the form is incomplete, the officer has no way of knowing for sure that your native alphabet is other than English... You may or may not get an RFE on this later...
Enjoy
Well, if you forgot to fill the native language thing but signed the form, you don't have to worry about anything. Although the form is incomplete, the officer has no way of knowing for sure that your native alphabet is other than English... You may or may not get an RFE on this later...
Enjoy
more...
maverick80
02-11 06:40 AM
I was talking to an attorney over the phone today and she said that PERM can be filed followed by 140 even if I am outside the country (working for an overseas department of the company) and I can come back on L1 / H1B, because GC is for future employment.
We were discuussing this because I was concerned that I may not be able to file H1 extension if the PERM is not filed 365 days before H1 extension.
This would be totally awesome coz I would love to work in some other country for a while.
Is this really true? (seems too good to be considering that everything else seems stacked up against us). Oh, if it matters to the discussion: I'm in EB2/India/retrogressed ad infinitum.
We were discuussing this because I was concerned that I may not be able to file H1 extension if the PERM is not filed 365 days before H1 extension.
This would be totally awesome coz I would love to work in some other country for a while.
Is this really true? (seems too good to be considering that everything else seems stacked up against us). Oh, if it matters to the discussion: I'm in EB2/India/retrogressed ad infinitum.
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testsite
11-21 01:06 PM
Hello, I have a question I hope someone is able to answer :)
Suppose my priority dates gets current for a certain month and therefore I apply for adjustment of status (I-485) and a EAD card for my wife (I-765). If the next visa bulletin retrogresses my priority date and it is no longer current, does that also freeze the I-765 processing, or would my wife get the EAD even if my priority date is no longer current?
Thanks.
Suppose my priority dates gets current for a certain month and therefore I apply for adjustment of status (I-485) and a EAD card for my wife (I-765). If the next visa bulletin retrogresses my priority date and it is no longer current, does that also freeze the I-765 processing, or would my wife get the EAD even if my priority date is no longer current?
Thanks.
more...
alparsons
November 16th, 2004, 09:02 PM
Looking at these pictures and I think that a couple of these would be a nice alternative to the usual porch light by the front door.
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reddy2cool
09-12 12:58 PM
bump..guys plz do reply
more...
avantika.nandamuri
04-08 09:26 PM
As soon I got the receipt number, I started working for Company B. Now I have paystubs for almost 8 months. With those pay stubs, can i transfer to company C? If Company C files for a H1 transfer, with which H1B receipt will he file for transfer-H1B approval copy of employer A or H1B receipt of employer B? My attorney feels that my H1 transfer petition with Company B has got stuck in a security/background check, since USCIS has not responded to 2 SR's placed by my attorney and added that PP will not help if my petition got stuck in security check.
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immi_enthu
08-10 06:52 PM
and more over 'weekly update' does not necessarily mean every week :rolleyes:.
more...
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fcres
06-29 10:58 AM
First renew your passport as soon as possible.
After that go to your local CBP office and request for I-94 update by showing your approved H1B petetion. If you are lucky, the CBP official might correct your I-94.
If not, apply for your H1B extension bfr your I-94 expires( a month bfr will do) as you can file for H1B extension six months bfr the current one expires ...
Good Luck ...
I don't think you need to change that I-94. But you need it to prove your last POE and date. My I94 stapled on the PP expired long time back. I just kept extending my H1 to have the valid stay.
Ofcourse you can renew you PP and keep the old I94 with your new PP. Try to do emergency PP renewal though.
After that go to your local CBP office and request for I-94 update by showing your approved H1B petetion. If you are lucky, the CBP official might correct your I-94.
If not, apply for your H1B extension bfr your I-94 expires( a month bfr will do) as you can file for H1B extension six months bfr the current one expires ...
Good Luck ...
I don't think you need to change that I-94. But you need it to prove your last POE and date. My I94 stapled on the PP expired long time back. I just kept extending my H1 to have the valid stay.
Ofcourse you can renew you PP and keep the old I94 with your new PP. Try to do emergency PP renewal though.
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raysaikat
08-01 12:11 AM
Dear Madam,
My wife is also in the same situation, I am not sure if you have found the response from anyone, but i would really appreciate if you can share your findings about the same question..
Regards,
-AShu
You need to carry both passports. The VISAs on the older passport remain valid unless they were explicitly voided.
My wife is also in the same situation, I am not sure if you have found the response from anyone, but i would really appreciate if you can share your findings about the same question..
Regards,
-AShu
You need to carry both passports. The VISAs on the older passport remain valid unless they were explicitly voided.
more...
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redcard
09-18 11:37 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
If you have done your FP twice.. you need to have fun, relax and forget about 45 day letter.. you passed that stage long time back.. this is basically for people who have labor certification pending with BEC.. just in case you don't know what BEC is.. its the Back Log Elimination Center set up to clear labor applications filled under the old system�.. and in case you don't know what the old system is ...........ok� its $5 for every further clarification..
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
If you have done your FP twice.. you need to have fun, relax and forget about 45 day letter.. you passed that stage long time back.. this is basically for people who have labor certification pending with BEC.. just in case you don't know what BEC is.. its the Back Log Elimination Center set up to clear labor applications filled under the old system�.. and in case you don't know what the old system is ...........ok� its $5 for every further clarification..
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mchundi
08-23 12:16 AM
I recently visited India(this july) with a new U.S passport and un endorsed PIO card( I did not know endorsement was required). Though i did not have to show the old passport, i carried with me anyway. No issues anywhere.
--MC
--MC
more...
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akashya
08-14 03:28 PM
Sorry I missed that.Yes I am employed .I will do that thorough my employer.But with out help of any attorney.
Thanks
Thanks
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codywang
02-08 02:11 PM
Yes, my EAD was approved and stay with same employer. What happen if I don't go out of country after I get a fresh H1B approval notice?
Yes, you can renew if your 140 is approved, i have done mine, my H1B was expired and used EAD for 2 months, and again file fresh H1B and got approved and went out of country to get stamp done,
Thanks,
Yes, you can renew if your 140 is approved, i have done mine, my H1B was expired and used EAD for 2 months, and again file fresh H1B and got approved and went out of country to get stamp done,
Thanks,
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indio0617
07-15 05:40 AM
Presently I am on H1B visa status, valid till March 2009. My PD is of June 2005 and I-140 was done in 2005 also, presently trapped in retrogression.
I have a great offer from a big oil company. After my possible joining to them with H1B transfer, they are willing to start my labor also. In such a case, I want my new labor to be filed ASAP, as my son will be 21 years old in march 2008.
In a case I join this new company in middle of August, when do you think my labor could be filed....I heard there is some two months advertising involved before filing in PERM.
Thanks for your time guys.
Advertising requires just one month period. Depending on how much advertising has been done before for the same job. You could typically file for PERM easily by mid september if not sooner.
I have a great offer from a big oil company. After my possible joining to them with H1B transfer, they are willing to start my labor also. In such a case, I want my new labor to be filed ASAP, as my son will be 21 years old in march 2008.
In a case I join this new company in middle of August, when do you think my labor could be filed....I heard there is some two months advertising involved before filing in PERM.
Thanks for your time guys.
Advertising requires just one month period. Depending on how much advertising has been done before for the same job. You could typically file for PERM easily by mid september if not sooner.
neo_ny
10-31 06:36 PM
Hello All - I understand from the website that the people already working in the US qualify for an emergency appointment if they are returning back to work in the US. Does anyone if this rule is also applicable it is the first time you are getting a H1-B visa stamp? I got a COS and am planning to get a stamp in December. I know that more dates are available now .. but was wondering if the need arises will I eligible for emergency appointment?
Thanks!
Neo
Thanks!
Neo
mbawa2574
08-21 06:22 PM
??
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