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Law Office of Robert Baizer | Firms | Attus

Immigration Law Office

Robert Baizer attended the University of California at Berkeley, and graduated in the top 10% of his class at Golden Gate University Law School.

For over twenty years, he was a partner in the firm of Yonemura, Yasaki & Baizer, which represented major Japanese & U.S. firms in employment based immigration cases, as well as in a variety of family immigration and citizenship matters.

Mr. Baizer has been a member of the American Immigration Lawyers Association for over 25 years, has spoken as a lecturer to other attorneys at their educational events, and has appeared on the organization’s behalf as amicus counsel before the U.S. Supreme Court.

He has successfully represented immigrants before the U.S. Court of Appeals, in U.S. District Courts, at various agency offices in the U.S. and abroad, and has testified before the immigration subcommittee of the U.S. House of Representatives. Mr. Baizer is a long-time participant in the immigration law clinic of the Alameda County Bar Association.

Mr. Baizer has been certified as a specialist in immigration law by the State Bar of California for over 20 years, and has been selected as a Northern California “Superlawyer” through a peer evaluation process.

H-1B’s
An H-1B visa is available for a person coming to work in the U.S. in a temporary, professional job. The job should require at least a related four year college degree, and the employer must pay at least the average wage for the occupation. Typically, the H-1B requires approval of three or four different government agencies, so an average of around three months processing time is needed before the visa can be issued and the applicant permitted to begin work. For those willing to pay the CIS’ “Premium Processing” fee, the result can be obtained in less than fifteen days. Most of the processing is done by our office, representing the prospective employer.

The H-1B worker is usually granted an initial stay of three years, with possible extensions for up to six years total in H-1B status. Family members are eligible for nonworking H-4 visas. While here, the person may also go through another process to obtain permanent immigration status.

EMPLOYER REQUIREMENTS
The law imposes several requirements on H-1B employers.

First, government filing fees for the visa are imposed (which vary according to the size & type of the employer – all employers, basic fee: $325; add-on for all employers filing first petition for the particular worker: $500; add-on, for most employers with under 25 workers – $750; add-on for most employers with over 25 workers – $1500). Employers are barred from obtaining reimbursement for this expense from the H-1B workers. (Many also opt to pay the CIS’ Premium Processing fee, another $1,225, to assure CIS action on the application within 15 days.). Extension applications have lower fee totals.

Second, employers must pay the H-1B worker either the average wage for the occupation in the geographic area of employment, or the average wage for the occupation within the company – whichever is higher. Full benefits must also be given to H-1B workers.

Third, employers must put the H-1B worker on the payroll within 30 days of the worker’s entry into the U.S. with the H-1B visa.

Fourth, no “benching” is allowed, the H-1B worker, if not laid off, must be paid whether work is available for him or not. Increased penalties for violations of the related rules have also been created.

Fifth, a set of rules for posting notices and record-keeping apply

The law creates a special class of employers, so called H-1B dependent employers, subject to even more rules, concerning issues such as proof of recruitment of potential U.S. workers, and attestations that U.S. workers are not being displaced by the H-1B workers. This class is defined according to whether the employer has a high percentage of its workforce in H-1B visa status. At the least, all employers have to keep track of how many H-1B’s they have and where they are.

THE PROCESS

The four steps in the process are:
Determine the prevailing wage for the occupation, either through reference to a published wage survey, or, through an inquiry done by our office to the State Employment Service office.

Secure an approved Labor Condition Application, through our office’s submission of this form to the Department of Labor. The employer must sign this form, post two copies of it at the place of employment, and save the copies in their H-1B file. Through this, the employer undertakes to comply with the various D.O.L. rules concerning the employment of H-1B workers.

Secure approval of the employer’s H-1B petition from U.S. Citizenship and Immigration Services. Our office prepares and files the petition with the CIS, with copies of the various forms of required documentation. Typically, we will submit the approved LCA, proof of the alien’s professional education & experience, proof that the position is of a professional nature, and copies of relevant employment contracts.

After the CIS approves the petition, if the alien is outside the U.S., we assist in his or her application to the nearest U.S. consulate for the visa. If the person is inside the U.S., his or her visa status can usually be changed to H-1B status while they are here.
GOING BEYOND THE SIX YEAR LIMIT
Many people in H-1B status find that, with long waiting lists for permanent residence processing, their six years of stay as an H-1B are running out before they can complete the application for residence.

While each such case requires an individualized consideration of the possible courses of action, one course is for the person to start on an application for permanent residence through a labor certification, at least one year prior to six year H-1B expiration. Having a residence case pending for over one year makes a person eligible for extensions of H-1B stay PAST the usual six year limit, for as long as it takes to complete the residence application. The key point is that it must be filed before five years in H-1B status has passed.

Family / Marriage
Our office has successfully handled hundreds of family based immigration cases. Delays, rejections and denials can be avoided by using an experienced immigration attorney who knows what documents are required, knows the processing procedures and knows the law. Mr. Baizer accompanies the client to every required CIS interview. You are assured that you will have someone at your side who has been through it a hundred times, knows what to expect, and knows how to handle what is coming. When necessary, Mr. Baizer has successfully resolved delayed or denied immigration cases by suing the CIS in mandamus litigation.

Waiting Lists due to Numerical Limitations

In some categories of family based immigration (not all) there are limited numbers of visas available. Whenever there are more qualified applicants for a category than there are available numbers, the category will be considered oversubscribed, and immigrant visas will be issued in the chronological order in which the petitions were filed until the numerical limit for the category is reached. The filing date of a petition becomes the applicant’s priority date. Immigrant visas cannot be issued until an applicant’s priority date is reached. In certain heavily oversubscribed categories there may be a waiting period of several years before a priority date is reached. For the latest priority dates, see the Department of State Visa Bulletin web site.

Visa Bulletin Tracking

Our office maintains an in-house database, to track each client’s progress on the Visa Bulletin waiting list as the list is updated each month, so we know when each client’s wait will be ready to be finished.

Same sex marriages can be used for Immigration

The June, 2013 U.S. Supreme Court case of U.S. v. Windsor invalidated the Defense of Marriage Act, opening the door to immigration via sponsorship of a spouse in a same sex marriage.  The USCIS has been processing many such cases, with positive results.  Our office has had success in such cases, finding a friendly & positive outlook from the USCIS adjudicators.

Labor Cert
The usual route for persons to obtain permanent resident status through their work is for their employer to work with an attorney to obtain a labor certification. Our office has successfully handled many such applications.

The labor certification is a finding from the U.S. Department of Labor (DOL) that:

The employer has a job opening,

For which they are offering the prevailing rate of pay,

For which the alien worker is qualified, and,

For which they have recruited and have been unable to find a qualified U.S. worker.

The securing of a labor certification is a procedurally complex process. It requires strict adherence to the rules and policies of the U.S. Department of Labor.

PERM

Department of Labor’s system for making this decision is conducted via an online application procedure called PERM.

The Department of Labor posts some summaries of its complex rules, and FAQ’s about the process, at its website. Some aspects of the PERM system are as follows:

1. Application format.- Use of an online form, the ETA 9089.

2. Prevailing wage.

-Before filing the labor certification with the U.S. Department of Labor, one must first obtain a prevailing wage determination from the agency.

-The employer must offer at least 100% of the wage found to be prevailing.

-The DOL prevailing wage system has at least 4 levels of pay for the occupation. The DOL online survey (found at http://www.flcdatacenter.com/ ) is updated annually.

-The online wage library survey will be the default wage looked to in making the determination, but employers will be entitled to use alternative surveys that meet regulations’ survey criteria.

-The DOL considers that any deductions for the legal costs would negatively impact alien worker’s wage, and therefore requires that the employer, not the worker, should pay the attorneys’ fees involved in a labor certification application.

3. Recruitment

-Must be done in the period from 30 to 180 days prior to filing.

– Must include 2 Sunday newspaper ads in the largest newspaper publication in that area (these ads need not include the wage offered, but must identify the employer and the type of position).

– Must include a state job system order placement of at least 30 days duration.

– For professional jobs, meaning those that require at least a bachelor’s degree, three additional types of recruitment must also be done, which must be three of the following –

Job Fair

On-campus recruitment if no experience is required

Posting on employer’s web site

Advertisement in professional association

Listing on private job search web site

Listing with private employment agency

Advertisement in employee referral program

Campus placement office

Local or ethnic newspaper ad

Radio & TV ad

– Evidence of recruitment, a signed recruitment report, and other types of required evidence will not normally be submitted with the application, but instead must be retained by the employer for a period of five years, to be ready in case of an audit by the Department of Labor

Supervised Recruitment

The rule provides that in any case in which the officer considers it to be appropriate, post-filing supervised recruitment may be required of the employer. The Dept. of Labor states that they anticipate that the decision on this issue will usually be based on labor market information. This means that, if their data shows that there are, in fact, available U.S. workers in the occupation in the employer’s area, more recruitment can be required, and its results will be closely examined by the officer.

4. Posted Notice

The employer, before filing, must have posted a notice of the job opportunity at its place of business, in a place visible to employees, for 10 business days, to give the workers notification of the application. The language of the notice must meet detailed guidelines. If there is a union, the union must be given the notice.

5. Occupational Classifications & Requirements

The job opening and its stated requirements will be evaluated in comparison to the U.S. Department of Labor’s O*NET job classification system.

If the employer’s stated minimum requirements for the position exceed those stated as normal in the O*NET system, then the employer will have to assemble evidence sufficient to establish that it has a “business necessity” for the additional requirements.

A foreign language requirement may be shown to be a business necessity if proof establishes that it is genuinely required for the employer’s communications with a majority of its customers, contractors or other employees. However, a foreign language requirement will usually result in the DOL requiring that a higher level wage be offered.

Experience gained by the alien with the same employer cannot be used to satisfy an experience requirement for the position, unless the employer can assemble proof to establish that the worker is now in a dissimilar job – one whose duties are different more than 50% of the time. The “same employer” means an employer having the same federal employer ID number.

6. Audits & Retention of Documentation

Since evidence of recruitment, the recruitment report, evidence of business necessity, and other types of evidence will not normally accompany the application, the rule requires that the employer save this evidence for a period of five years in order to respond to an “audit” by the Department of Labor to verify the existence and sufficiency of the various types of evidence.

Audits may take place before or after a decision on the application. Employers must respond to an audit request within 30 days.

7. Qualified U.S. Worker

The basic law in the statute that authorizes the labor certification process is designed to create a process to test the labor market so that the Department of Labor can determine whether or not there are any qualified U.S. workers, willing and available for the position. This determination is based only upon whether the recruitment has discovered a U.S. worker who meets the minimum qualifications for the position – if so, then the application will be denied, regardless of whether the alien worker is more qualified. (An exception allows employers of college instructors to choose the most qualified person.)

The DOL’s regulation directs that a U.S. worker might even be considered qualified if he does not meet the minimum qualifications for the position, if he can achieve such qualification through a “reasonable period of on-the-job training”.

ONLY THE BEGINNING

After securing the labor certification, there are two more steps in the process. First, the employer must submit a visa petition to the Immigration Service, and then the alien worker must apply for change to permanent resident status. Completing these steps can take years, due to the long visa waiting lists, especially in the “EB3” immigration category.

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