On behalf of Rahul Reddy and everyone at the law firm of Reddy & Neumann PC, we respectfully wish to address and clarify the clear misunderstandings stemming from a YouTube video posted late last week.

It has become apparent that many people are upset and concerned regarding a presentation and Q&A featuring Rahul Reddy that was the subject of a recent viral video. These people seem to believe that Rahul was making statements against the plight of those skilled nonimmigrants who have worked so hard in order to try and obtain the legal right to live and work in the United States. Rahul and Reddy & Neumann want to make it very clear that this is nothing more than an unfortunate misunderstanding and could not be further from the truth.

Rahul knows first-hand the many sacrifices and hard-ships that you have all faced. Like you, he has left behind family, friends, and his home, to come to the United States. Rahul came to this country in the same way as many of you; on an H-4 Visa. When Rahul first began working as an immigration attorney, he had not even received his own green card. He had to wait for his EAD based on his wife’s Adjustment of Status application. Since the very beginning, Rahul has spent his entire career tirelessly fighting for your rights so that you can better support yourselves and your families.

As an advisor, a lawyer provides a client with an informed understanding of the client's legal rights and obligations and explains their practical implications. As an advocate, a lawyer zealously asserts the client's position under the rules of the adversary system. As a negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealing with others. As an intermediary between clients, a lawyer seeks to reconcile their divergent interests as an advisor and, to a limited extent, as a spokesperson for each client. As part of the various functions a lawyer performs, Rahul was requested to speak before a group of business owners on the various hot topics in employment-based immigration. Similar speaking engagements are fulfilled by lawyers across the country in every area of law. It should be pointed out that the video, while recently shared, was actually from an event that occurred in September 2015 as the October Visa Bulletin with the revised format had just been announced.

The accusations against Rahul and his intentions are completely false and go against everything that Rahul and Reddy & Neumann values. There are countless videos posted of presentations given Reddy & Neumann over the years. A five minute discussion of potential litigation to fight the Matter of Simeio Solutions decision was taken out of context and falsely suggests that Rahul and a group of employers were plotting against skilled immigrants. For over 15 years, we have battled with the USCIS on behalf of all skilled nonimmigrant workers, particularly those from Rahul’s home country of India. Not only for our own clients, but on behalf of all people who wish to come to the United States seeking to make an honest living through hard-work and determination. This is clearly evidenced by the many articles our firm has published in regards to skilled nonimmigrant workers’ rights.

When the October Visa Bulletin was abruptly revised days later, Reddy & Neumann published an article on our website conveying our disappointment in these actions and a suggestion to fight the change. The firm hosted daily free conference calls for anyone affected in order to try to coordinate action and push DHS and DOS to honor the original filing dates. Emily Neumann, a partner at our firm also used her blog to try to raise awareness of the plight of skilled immigrants with the media through Twitter. She further posted sample letters for those impacted to send to their Senators and Representatives. As you can see, from the very beginning of this situation Reddy & Neumann has been in favor of helping those of you struggling to obtain a green card due to the priority date catastrophes caused by the USCIS.

On December 15, 2015, Emily Neumann again published an article regarding the new I-140 regulations in order to help inform and educate the thousands of nonimmigrant workers affected by these proposals. Emily publishes these articles for free, specifically to help skilled nonimmigrant workers in their battle for equal working rights and opportunities.

On December 30, 2015, Reddy & Neumann published an article on our website detailing the downsides to the proposed final rule and detailing our deeply held disappointment in the administration. Rahul and Reddy & Neumann understood that the rule “will have very little impact on highly skilled international workers and their families who are languishing in queues waiting for employment-based green cards.” We have fought endlessly to help these skilled workers and their families and when the USCIS disregards your rights, we feel your anger and anguish.

Then, on January 4, 2016, Emily published another article detailing the processes required when changing employers with an approved I-140 petition. This article meticulously details the processes and how the latest proposed regulation would change the landscape for the many thousands of workers affected. Again, Emily posts these articles for free with the sole intention of helping you secure the equal rights and opportunities you deserve.

Finally, on January 11, 2016, Emily published an article intended to directly help those of you affected by the new proposed rule for Retention of EB-1, EB-2, and EB-3 Nonimmigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers. This article was published in order to help those of you affected by this new rule make useful comments in order to try and convince the administration to make the necessary changes on your behalf. This article provided detailed instructions on how and what to write in your comments in order to provide the best possible chance for making a meaningful difference. While these comments did not ultimately force the USCIS to make the changes we all wanted, Reddy & Neumann has clearly stood by your side and fought with and for you against the administration.

Rahul became an attorney with one goal in mind, to help lessen the burden on skilled nonimmigrant workers and provide them the equality they are entitled to. Even in the video in question, Rahul himself laments the “second-class citizen” treatment of Indian nonimmigrants in this country. He has spent his entire career fighting against these injustices, so that you too can enjoy the opportunities and success you deserve. On behalf of Rahul and everyone at Reddy & Neumann, we hope the evidence provided will eliminate any misunderstandings and show to those of you who feel upset and betrayed that we have and always will fight on behalf of you and your families.

 

 

Reddy & Neumann, P.C. is an immigration law firm in Houston, Texas. For over 15 years, our firm has successfully represented corporate clients across the United States in their efforts to bring foreign workers and business professionals to the United States. Reddy & Neumann, P.C. is highly experienced in working with employment-based visas, adjustment of status, green cards, and PERM labor certification. From filing, through approval, and on to appeal, we do everything possible to ensure that your company can bring the best and brightest in the world to the United States.

 

 

 

 

One of the major requirements for approval of an I-140 Petition is that the employer must submit documentation to prove that the company has the ability to pay the “proffered” wage. Recent decisions from USCIS Service Centers indicate that a new, higher standard is being applied to ability to pay determinations. In light of this trend, employers should contact a qualified immigration attorney to discuss any “ability to pay” concerns they may have prior to filing an I-140 petition.

8 C.F.R. Section 204.5(g)(2) states:

Any petition filed by or for an employment-based immigrant which requires an offer of employment must be accompanied by evidence that the prospective United States employer has the ability to pay the proffered wage. The petitioner must demonstrate this ability at the time the priority date is established and continuing until the beneficiary obtains lawful permanent residence.

The “proffered” wage is the salary indicated on the labor certification, which must be at least equal to or greater than the prevailing wage determined by the Department of Labor prior to filing the labor certification application.

In addition to the above regulation, USCIS provided further guidance on this requirement in a 2004 memo stating adjudicators should make a positive ability to pay determination if the Net Income, Net Current Assets, or Actual Wages Paid are equal to or greater than the proffered wage.

Furthermore, the Administrative Appeals Office has utilized the “hybrid” test in determining a petitioner’s ability to pay.  Under the hybrid test, if a beneficiary was paid less than the proffered wage, ability to pay may be found if the difference between the actual wage paid and the proffered wage is exceeded by the company’s net income or net assets for that year.

If a company files on behalf of a future employee or is currently paying an employee less than the proffered wage, this creates a potential gap in the company’s ability to pay analysis because the beneficiary would have no wages, or lower wages, paid from the priority date and cannot satisfy the third prong: employment of the beneficiary.  While this gap could be overcome in certain circumstances, recent decisions from USCIS Service Centers indicate that a new interpretation of ability to pay may be trending in which previously successful strategies are no longer accepted. The below chart highlights the change:   

 

An employer has sponsored three workers, each with a proffered wage of $100,000 per year. Worker #1 was paid $100,000 (this is the actual wage). Worker #2 is currently working in a different position than what he was sponsored for, and his actual wage in his current position is $80,000. Worker #3 received a bonus so his actual wage paid was $120,000. In the past, USCIS would look to the total of all proffered wages ($300,000), then calculate the total of actual wages paid (also $300,000). As in the above table, the total proffered wages was equal to the total actual wages, and USCIS would typically approve the I-140 petition in this scenario.

The far-right column represents the new interpretation of USCIS based on recent decisions. Some USCIS adjudicators do not take into consideration the payments made to workers that were more than the proffered wage. Instead, those are taken out of the calculation, leaving our example with a shortfall of $20,000. The ability to make up this shortfall must be demonstrated through either the employer’s net income or net current assets based on the employer tax return for the year in question. While it may be easy to overcome such as shortfall for a handful of employees, it can be harder to obtain an approval when the actual wages of multiple employees are less than the proffered wage. It is essential for an employer to discuss this issue with their immigration attorney if the actual wage of a sponsored worker is less than the proffered wage.

 

Reddy & Neumann, P.C. is an immigration law firm in Houston, Texas. For over 15 years, our firm has successfully represented corporate clients across the United States in their efforts to bring foreign workers and business professionals to the United States. The attorneys of Reddy & Neumann, P.C. are highly experienced in obtaining employment-based visas for our clients and well-versed in the issues including foreign education equivalency, relevant experience requirements, and EB-3 to EB-2 visa category conversion.  From filing the I-140 Petition, through approval, and onto the adjustment process we do everything possible to ensure that your company can bring the best and brightest in the world to the United States.

Personal Responsibility: It starts at home, but follows you to the United States.

With increased political and economic pressure, Customs and Border Protection (CBP) is more incentivized than ever before to keep rule-breakers out of the country.

However, the decisions you make before and during your travel to the United States for school will mean the difference between a promising academic future and an unplanned return home. Consider the following five suggestions to make your time getting into and staying in the United States easier:

1. Tell the truth on all paperwork, including questions about school fees.
If you have mentioned in the student visa application that your dad is going to sponsor your education, but if at the time of entering the United States, you indicate that your cousin is going to pay the tuition, that will increase scrutiny. Making up a story will understandably catch CBP’s attention, and could keep you from entering the country.

2. Disclose in specific detail what you are bringing into the United States.
Better yet, avoid bringing materials unnecessary to your stay here entirely! For example, several food items, such as pickles, are explicitly listed by CBP as items you must declare when entering the country. Failure to disclose prohibited items will be grounds to exclude you from the country, so review carefully the list of prohibited items. The last thing you want is for your promising academic future to be ruined by a snack from home.
3. Avoid taking flights through the Middle East. CBP agents are particularly suspicious of any travel that could be linked to the Middle East. This extra scrutiny will inevitably frustrate travel for everyone coming through the Middle East, so do not take the risk of flying through there – just use European airlines.

4. Avoid final arrivals in airports that are far from the university you plan to attend.
CBP officers are tracking your every move. Therefore, they may be very confused as to why an Indian national planning to study at Texas A&M in College Station, Texas, would make Idaho – a state 2,500 kilometers away from Texas – his or her final destination. A much safer bet would be to land in a Houston airport, which is considerably closer.

5. Make yourself aware of the laws in the United States, and consult with an attorney.
A student visa is not a dual-intent visa – you must have the proper paperwork filed and approved before you start to work here. Using your student visa just to get into the country for work is considered a violation. Even a seemingly innocent decision, such as working in a restaurant while you study, could cause issues. Speaking with an attorney in advance could avoid these serious problems with your status.

At the end of the day, part of succeeding in school is making it to class. Take the above steps to heart, and you will greatly increase your chances of being accepted into the United States.

 

Reddy & Neumann, P.C. is an immigration law firm in Houston, Texas. For over 15 years, our firm has successfully represented corporate clients across the United States in their efforts to bring foreign workers and business professionals to the United States. Reddy & Neumann, P.C. is highly experienced in working with employment-based visas, adjustment of status, green cards, and PERM labor certification. From filing, through approval, and on to appeal, we do everything possible to ensure that your company can bring the best and brightest in the world to the United States.

As widely reported, several Indian nationals were recently denied entry to the U.S., even though they possessed F-1 student visas. Some were denied entry at the border, at a U.S. airport, while some were not allowed to board flights from India, due to the universities that granted them admission (Silicon Valley University and National Polytechnic University).

This story is illustrative of the fact that being granted a visa by a U.S. consulate does not guarantee entry into the U.S. Applicants should be aware that issuance of a visa by a consular official only grants permission to travel to a U.S. port of entry, where they will apply for admission into the U.S. with Customs and Border Protection (CBP) pursuant to the specific visa issued by the consulate.

CBP can and will make its own determination concerning an applicant’s eligibility for entrance to the United States, and has full discretion to deny an application for entry and require the applicant to return to his home country, despite possession of a visa stamp, as in this recently reported case. In the case of an F-1 student applicant, in making a determination of eligibility, CBP may weigh factors such as: 

Reputation of the academic institution to which the applicant has applied: Being accepted to a university and being issued an I-20 does not guarantee anything. Immigrations & Customs Enforcement (ICE) and the FBI have investigated, raided, and shut down universities in the past for immigration fraud, where school administrators granted admission and issued I-20s to thousands of foreign nationals, with no intention to provide a legitimate education. Schools that are similarly susceptible to government investigation tend to grant admission to applicants with low GRE/TOEFL scores and poor academic performance.

Source of funds: F-1 students in the U.S. are required to show that they have adequate funds to pay for their tuition, room/board, etc., which would avoid the likelihood that they will work without authorization in order to support themselves. Consulates also ask for this information, but if the answers/evidence given at the border do not match the information given to the consulates, this inconsistency can call the applicant’s intentions into question.

Whether the applicant can answer basic questions concerning his expected study in the U.S.: Transcripts of interrogations at the border indicate that many applicants who were denied entry and sent back to India could not answer basic questions concerning their expected study in the U.S. Some could not identify the program/major in which they had enrolled, or the cost of tuition at their school.

The applicant’s own communications: CBP, along with other DHS agencies, can check applicants’ social media accounts, and can confiscate cell phones. Applicants’ chat and text transcripts on their own phones can lead to denial of entry, if those communications with family/friends indicate that the applicant does not actually plan to study in the U.S.

The case of the students who were denied admission indicates that coming to the U.S. on an F-1 visa should not be taken lightly. F-1 applicants should take the initiative to investigate and educate themselves for their planned F-1 study, and not rely solely on word-of-mouth or the direction of so-called “consultants.” While it appears that the schools were the main reason why these particular applicants came to the government’s attention, even if you are not planning to attend one of the “blacklisted” schools, be aware that the responsibility for proving eligibility for entry to the U.S. rests solely with the applicant.