marriage fraud

Third-Party Worksites

June 8, 2018

Introduction An H-1B work visa is appropriate if two primary conditions are met. First, an employer must be able to demonstrate its need for a qualified worker to fill a specialty occupation. Second, a valid employer-employee relationship must exist throughout the duration of the H-1B visa residency.  For a more detailed discussion of the first requirement please see our previous articles. The petitioner (sponsoring employer) carries the burden of proving that a valid employer-employee relationship will exist for the duration of the beneficiary’s (foreign national’s) residency. Usually, a valid employer-employee relationship will exist if the petitioner retains the right to control the daily tasks, the work production, and is able to hire, fire, and pay the beneficiary. Demonstrating that a valid employer-employee relationship exists in compliance with the H-1B standard has never been difficult when the beneficiary will work at the petitioner’s job site, i.e. office, factory, or store. However, when an H-1B beneficiary will be working at multiple job sites a petitioner must demonstrate that a valid employer-employee relationship will exist when the beneficiary is on an assignment at a third-party worksite. It is more difficult to demonstrate a valid employer-employee relationship exists at third-party worksite because usually, both employers maintain some degree of control over the beneficiary. For example, the petitioner may retain the right to pay, fire, and dictate work production, but the third-party worksite may retain the power to discipline and dictate daily tasks of the beneficiary. Typically, when the United States Citizenship and Immigration Services (USCIS) was skeptical that the employer-employee relationship prong had been satisfied it would request additional information from the petitioner. However, under the Trump administration, the USCIS has reviewed and altered the third-party worksites evidentiary requirements. It issued a new policy memorandum that mandated that petitioners submit itineraries and non-speculative evidence that an employer-employee relationship will exist throughout the duration of the beneficiary’s residency if the beneficiary will work at multiple worksites.

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Same-Sex Marriage and Immigration

June 16, 2015

On Friday, June 26, 2015, the U.S. Supreme Court ruled in the case Obergefell v. Hodges that same-sex marriage is now legal nationwide.  The below article was written prior to the issuance of this decision and will be updated accordingly to reflect the current state of the law.  Like many areas of law, immigration is dynamic.  U.S. Citizenship and Immigration Services (USCIS) monitors relevant case law and makes changes to immigration policy accordingly.  Same-sex couples have made significant legal strides in the past decade, and these victories are reflected in current USCIS policy.  It is crucial that anyone with immigration issues who is in a same-sex relationship finds an attorney who understands how LGBT (lesbian, gay, bisexual, and transgender) immigrants and their partners are affected by new regulations and procedures. A Brief History of Immigration Law for LGBT People LGBT foreign nationals were considered excludable from the U.S. on medical grounds until 1991. This was due to the historical classification of homosexuality as a mental illness.  The psychological and medical fields evolved and changed their stance, and public acceptance of homosexuality as a normal human variation has followed.  From the mid-1990s, individual states began allowing same-sex marriage or alternatives like domestic partnerships or civil unions. Until recently, same-sex couples were unable to utilize their marital relationship as the basis for applying for immigration benefits, even if they were married abroad or in a state where the marriage was legal.  Under the 1996 Defense of Marriage Act (DOMA), the federal government was prohibited from recognizing same-sex marriages for federal programs like Social Security benefits or income taxes. This prevented USCIS from considering a same-sex spouse as an immediate family member for immigration purposes.  Similarly, any immigration benefit that would normally be derivatively available to the spouse or children of a nonimmigrant or an immigrant visa applicant was withheld from same-sex couples.  Immigration benefits were also denied for the step-children of same-sex partners.

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