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Right for Counsel at a Port of Entry

There is a scene in the movie Charles, where as Ray Charles is exiting the airplane in New York’s airport, the FBI detains him.  His attorney tries to intervene and he gets a cold answer from the agent:  “This is a port of entry, he has no right to counsel.”  Unfortunately, that is true. Under current law an applicant for admission is not entitled to representation in primary or secondary inspections, unless he or she “has become the focus of a criminal investigation and has been taken into custody.”  An individual that is being detained cannot communicate with any individual until he has been processed.  That processed may be an arrest, a removal or simply questioning.

If an individual is being questioned he does have a right not to answer any questions and he can request for an attorney to be present.  However, if an individual requests access to a attorney during a personal search, more likely than not he will be advised by the officer that a personal search is not an interrogation and that the individual is thus not entitled to an attorney during the search.  Also, a detained individual does not have the right to consult with an attorney until his Miranda warnings are given.

It’s clear that an individual does not have a right to counsel during primary or secondary inspection.  However, that individual has a right not to answer any questions and he can always invoke his or her fifth-amendment right.  Also, any inspections on any devices have to be “reasonable.”  If one is being questioned during an inspection he should answer truthfully, but in the event he may self incriminate he can always invoke his rights under the fifth-amendment.

Is a Degree in Business Administration Suitable For an H1B Visa?

Is a Degree in Business Administration Suitable For an H1B Visa?

In the past couple of years we have found an alarming trend by the adjudicators at USCIS to deny specialty occupations on the grounds that a degree in Business Administration is not a specialty occupation as defined on the regulations for H1B visas.  When found with a degree in Business Administration USCIS is simply taking the position that the beneficiary activities are not professional or do not give rise to that of a professional level. We have even seen instances where the Service implies that accounting activities are not professional.

The way to overcome this attitude is to be specific about the activities of beneficiary. By specific I mean a clear detailed analysis of the activities with an explanation why somebody with just a high school degree cannot accomplish those activities. The study and evaluation of financial statements prepared by an accountant can be specialized if they include recommendations and alternatives. If one is not specific with those activities on risks the strong possibility of a denial by USCIS.

In summary when preparing an H1B for an individual with a degree in Business Administration one needs to be specific enough with the activities and relate them to his degree. A mere explanation stating that beneficiary oversees the operation is not sufficient.

TN Visa For a Company Accountant

One of the pitfalls of the TN visa is the miss understanding that certain examiners have regarding what are the activities of an accountant.  We’ve seen a tendency from USCIS to consider accountants as those that are Certified Public Accountants.  They are failing to consider that an accountant has a broad job definition.  When applying for a TN as a staff accountant or Internal accountant one needs to be aware that some examiners believe that anything less than performing audits or preparing tax documents are not activities of a “Professional” nature.  When preparing an application as an accountant one needs to be aware of what the true definition of an accountant is.

The Occupational Outlook Handbook (OOH), which is the side manual of many USCIS examiners, states the following activities for accountants:

  • Examine financial statements to ensure that they are accurate and comply with laws and regulations.
  • Compute taxes owed, prepare tax returns, and ensure that taxes are paid properly and on time.
  • Inspect account books and accounting systems for efficiency and use of accepted accounting procedures.
  • Organize and maintain financial records.
  • Assess financial operations and make best-practices recommendations to management.
  • Suggest ways to reduce costs, enhance revenues, and improve profits.

The OOH also mentions that there are different types of accountants. for example Public Accountant, Management accounting, Governmental Accounting, Internal Auditors, External Auditors, Information Technology Auditors. All of these accounting fields have their own different job duties and each one different types of accounting process.

Although USCIS uses the OOH as their main authority to review job descriptions, one should also present other authorities such as trade associations or even requirements for similar positions in similar companies.  This is particularly important because USCIS will deny cases where their main argument is that the staff accountant did not submit any documents with any Tax authorities.  The way to avoid this is cross-referencing a staff accountant duties to these enumerated in trade journals or trade association publications.

In preparing an application one needs to emphasis that all the activities of a staff accountant are professional in nature. A detailed explanation of the activities that a staff accountant does needs to be presented. This way one can avoid the pitfalls of receiving a denial from USCIS.

H2B Program Under Scrutiny

A set of several federal court decisions has brought a spotlight on the H-2B program. The H-2B program, in its current form, it allows employers in the United States to hire foreign workers to fill non-agricultural temporary jobs.  To sponsor a foreign national for an H-2B visa, an employer must establish that there are not enough U.S. workers who are able, willing, qualified, and available to perform the job; H-2B workers be paid the prevailing wage and their employment not adversely affect wages and working conditions of U.S. workers; and the prospective work is temporary (a one-time occurrence, or based on seasonal, peak load, or intermittent need that cannot last more than one year).

Although the intention of this program is to help the gap that U.S. Employers may have, current court decisions show that this program is unscrupulously used by some companies and attorneys as labor trafficking.  One of these cases is David et al. v. Signal International, LLC. In this case, the jury found that Signal International LLC (a maritime construction company), a U.S.-based immigration attorney, and an India-based labor recruiter engaged in labor trafficking, fraud, racketeering, and discrimination while using the H-2B program to bring hundreds of workers to Texas and Mississippi to rebuild after Hurricanes Katrina and Rita.

Another case, Autobuses Ejecutivos LLC, a bus company based in Houston, Texas, had to settle with the Department of Labor for discriminating against U.S. workers by preferring to hire workers on temporary H-2B visas for its bus driver positions.  In fact there is plenty of evidence that the H-2B program is wrongfully used by some unscrupulous employers. Ten closed cases over the last 5 years that involved H-2B employers and recruiters that violated various labor laws or settled allegations of violations outside of court. These 10 cases involved diverse employers in different industries with employees in 29 states with violations in areas such as employers failing to pay promised wages, overtime, or both; employers charging H-2B workers exorbitant fees; and employers and recruiters submitting fraudulent documentation to government officials. For example, in one case H-2B workers became indebted to their employer through a series of arbitrary charges. The employer then forced workers to take second jobs at local fast food restaurants to pay these debts.

If one is the beneficiary of an H-2B visa and feels they have been abused or threatened to have the visa revoked if they do not work overtime or certain expenses are not met.  You should consult with an experienced immigration and labor attorney to protect those legal rights.