The consequences of not properly preparing for an H-4 visa interview may be devastating. H4 visas are for the spouses and children of H1B temporary workers. Consular officers at the Embassy in Manila are specifically examining the wages paid to H1B workers when H-4 visas are requested. Failure to pay the prevailing wage is a H-1B violation which may have serious consequences for the H-1B worker and his family. The story of Emanuel below illustrates an all too common and heartbreaking experience.
Emanuel, an Accountant from the Philippines, visits the United States. During his visit New Products Inc. offers him a position as an Accountant with a salary of $17 per hour. The company files an H-1B petition with the U.S. Citizenship and Immigration Services (USCIS) to allow Emanuel to begin working. In its H-1B petition New Products declares it will pay the prevailing wage of $17 per hour. The USCIS grants Emanuel 3 years of H-1B status.
Emanuel starts working for New Products as an Accountant, but New Products only pays him $12 per hour. Emanuel does not file a wage complaint with the Department of Labor, he is just thankful to be employed. He sends money home to the Philippines to his wife, two children and his younger siblings to pay for college. Once Emanuel saves enough money, he will bring his wife and children to the U.S. with H-4 visas. The cost of living in the U.S. is high so it takes Emanuel three years to save enough money to bring his family.
New Products is impressed with Emanuel and sponsor him for a green card. They also increase his salary to $15.50 an hour. They obtained an approved labor certification for him as an Accountant at $22 per hour. New Products files an immigrant visa petition with Emanuel’s application for a green card.
At the embassy interview of his wife for H-4 visas the consular officer requested additional documents: a copy of the H-1B petition, Emanuel’s 3 most recent pay stubs and Emanuel’s W-2 tax forms which reflect his annual salary with New Products. Emanuel is eager to have his family join him as soon as possible and rushes the requested documents to his wife. His wife takes these documents to the Embassy expecting H-4 visas to be issued.
At her second interview she is shocked to hear the consular officer deny the visas! The officer also informs her that he is sending USCIS information to revoke her husband’s H-1B Status. This exact scenario is devastating the immigration plans of so many. The extra documents showed Emanuel was not receiving the H-1B wage of $17 per hour as required by law. The employer violated the H-1B provisions leaving Emanuel “out of valid H-1B status.” The H-1B wage is meant to protect U.S. workers, but some government officials are turning the law upside down and punishing the workers.
Emanuel’s problems are just beginning. The USCIS revokes Emanuel’s H-1B status, finding the employer’s failure to pay the wage was a misrepresentation. Emanuel is now left without status. He cannot change to a new employer since the USCIS has determined he is not in status. Emanuel now seeks legal advice and learns that the Embassy in Manila takes the blanket position that the H-1B workers have “colluded” with the H-1B employers to accept a wage lower than the prevailing wage rate.
Shortly after his H-1B is revoked, New Products’ immigrant visa petition for Emanuel is denied because he is out of status and the labor certification wage offer is not credible since the employer did not pay the prevailing wage. As a result, Emanuel’s green card application is also denied. Emanuel may no longer remain in the U.S and his chances of ever immigrating to the U.S. are permanently over.
H-4 visa applications must be carefully and properly prepared. At Reeves & Associates, we ensure that all aspects of the H1B requirements are met before applying for H-4 visas, including wage issues. In some cases it is possible for employers to pay the back wages and remove the violation. Before our clients’ dependents are interviewed at the U.S. Embassy, their documents are carefully scrutinized and dependents are prepared for their interview.
Author's Note: The analysis and suggestions offered in this column do not create a lawyer-client relationship and are not a substitute for the individual legal research and personalized representation that is essential to every case.
Atty. Reeves has represented clients’ innumerous landmark immigration cases that have set new policies regarding INS action and immigrants' rights. His many successes have been published in Interpreter Releases, Immigration Briefings and AILA Monthly which are nationally recognized immigration periodicals widely read by immigration lawyers, State Department and immigration officials. His cases are also cited in text books as a guide to other immigration practitioners.
His offices are located in Pasadena, San Francisco, Las Vegas and Makati City.