With H-1B season upon us, it is time to review the visa status expirations for foreign national employees. There may be some who will need to change visa status to H-1B for continued employment with your company. For example, an F-1 international student who is employed based on his/her optional practical training may need H-1B sponsorship. Now is the time to see if anyone will need assistance with an H-1B petition.
As you know, last year USCIS implemented a new electronic registration system for employers seeking to file H-1B cap-subject petitions for their foreign national employees. If your company already has an account in the my.USCIS.gov database, you will only need to register any new foreign nationals for purposes of being selected to file an H-1B petition during the registration period. The registration period begins March 9th and closes March 25, 2021. Once the registration period is over, USCIS will then run a random selection process on those electronic registrations. Only those with selected registrations will be eligible to file H-1B cap-subject petitions. Following the selection process, employers will have a 90-day window to file a petition for each registration selected. If insufficient H-1B cap-subject petitions are received by USCIS from the initial selected registrations then they may conduct a second lottery as was done in August 2020.
As we get closer to the H-1B registration dates, we will provide further guidance on the process of registering your foreign nationals. In order to meet the registration deadline, it is important to assess who among your foreign nationals will need a change of status to H-1B and will need to be registered in the government system as soon as possible.
Last November I mentioned that the Trump Administration enacted over 400 immigration policy changes during its tenure. The changes added burdens to visa petitions, delayed processing, and made life more challenging for everyone in the immigration community.
Executive Order Highlights
President Biden signed a slew of prepared executive orders when he took office. Some of the orders that affect the immigrant community include:
the preservation and plans to “fortify” the Deferred Action for Childhood Arrivals (DACA) program;
cessation of border wall construction; and
a halt to former President Trump’s plan to exclude noncitizens from the census and the apportionment of congressional representation.
President Biden used his executive orders to stop or reverse President Trump’s executive orders, but knew that to make more permanent changes to U.S. immigration policy he would need legislative support. He delivered his bill, the U.S. Citizenship Act of 2021, to Congress on his first day seeking those changes.
U.S. Citizenship Act of 2021
This bill would modernize the country’s immigration system with a major overhaul. The new system would provide a path to citizenship for undocumented immigrants and reform both family-based and employment-based immigration policies.
Dreamers, Temporary Protected Status (TPS) holders, and farmworkers could apply for green cards immediately and for citizenship after three years. Other unauthorized immigrants could apply for temporary legal status immediately, for green cards after five years, and for citizenship if they qualify three years later.
The bill would eliminate the 3-year and 10-year unlawful presence bars that kept families apart. Measures would be put in place to eliminate family-based immigration backlogs, to reduce wait times, and to recapture lost visas.
Similar measures would occur for employment-based immigration to eliminate backlogs, reduce wait times, and recapture lost visas. H-1B holders’ spouses would get employment authorization and their children would be protected from aging out of the system.
The H-1B 2022 Filing Season
The Biden administration will need time to review individual policies and procedures to make further changes. This applies to the upcoming H-1B lottery.
We don’t yet know if USCIS will stay with the March 1 lottery application deadline used last year, or push the deadline later. We suspect they will use the electronic filing system instituted last year because we have not heard otherwise and it seemed to go smoothly. But we don’t know.
We are waiting to hear what the administration will do with the regulation for higher wages to be favored in the employer registration selection system, which was issued on January 8, 2021 and is slated to go into effect on March 9.
Despite all this uncertainty, the H-1B lottery will happen this spring.
The Trump administration has enacted more than 400 immigration policy changes. That’s one change every 3.65 days the administration has been in office.
Weary from the whiplash of changes and weight of additional work, many are wondering how President-Elect Joe Biden will approach immigration policy.
Here are my thoughts on four issues affecting clients:
The Quickest Change Will Likely Be Better Visa Processing Times
COVID-19 will still slow processing as many U.S. Citizenship & Immigration Services (USCIS) employees are working from home. But without the anti-immigration winds that have been blowing from the White House, USCIS staff will be free to consider petitions in a timely manner.
Look for application and petition processing times to return closer to the six to eight months they used to take, instead of the one to two years they have reached recently.
Student Duration-of-Status Rule Change
For decades, student visas have been granted for a “duration of status” in a nod to the different lengths of time international students require to finish their degrees in the United States. Times vary by degree – bachelor, masters, doctoral.
Sometimes students require extra time to complete their degrees due to the need for certain classes, participation in research, and the challenges of academic rigor and studying away from home. Illness can sometimes play a role too.
On September 25, 2020, the Trump administration published a new rule in the Federal Register to change student visas to a fixed duration of not more than four years.
The rule change would force many students to file for extensions to complete their degrees, creating much extra work and expense. The current fee to file for an extension is $370. Some students might need to file more than once.
The change would also give the Department of Homeland Security (DHS) officials the power to deny extensions to students they deem unwilling or unable to complete their course of study. Usually academic institutions make those determinations.
The rule’s comment period ended October 26, 2020. It is unclear whether this rule will move forward. Even if it does, there is hope that the Biden administration will reverse it.
H-1B Wage Level Changes
On October 8, 2020, the Department of Labor issued an Interim Final Rule (IFR) entitled “Strengthening Prevailing Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States.”
IFRs fast track changes as they allow rules to become final upon publication instead of waiting for the usual public comment period.
The rule aims to restrict H-1B visas to the most highly-skilled workers and raises each wage level substantially. Level 1 increased by 17 percent, level 2 rose by 24 percent.
Those increases preclude most entry-level jobs from qualifying, making it difficult for recent graduates to find work and stay in the U.S. They also increase costs to any company who use or rely on H-1B workers.
Three lawsuits are challenging the rule, led by the U.S. Chamber of Commerce, Purdue University, and ITServe Alliance. The lawsuits and the new administration may prompt some mitigation of this rule. As it has bipartisan support, I don’t expect it to be struck down entirely.
Public Charge Rule
On October 10, 2018, USCIS filed a public charge rule change in the Federal Register to allow immigration officials to deny green cards to immigrants on any form of public assistance, including food stamps, Medicaid, and public housing vouchers. Applicants already have to prove they are not a public charge, but the new rule expands the number of benefits DHS could use to deny a green card. Additionally, compliance with the rule requires applicants to fill out an 18-page form (I-944), prove they have health insurance, and provide reams of other financial documentation.
Numerous legal challenges have delayed the rule, which went into effect on February 24, 2020. A federal judge in New York blocked the rule on July 29, 2020, saying nothing should impede immigrants from seeking testing and treatment for Covid-19.
On September 11, 2020 the Second Circuit Court of Appeals ruled DHS could resume enforcing the rule. On November 2, 2020, a federal court judge in Chicago struck the rule down, saying the Trump administration violated the Administrative Protection Act when they created it. Yet another judge stayed that injunction while the decision is being appealed. The Biden administration may drop the appeal and let the judge’s ruling that the rule was unlawfully created stand.
The U.S. immigration system has always been something of an obstacle course. Recent developments have made it more like an intricate labyrinth with detours, hidden delays, and dead ends if you are not careful. Here are some recent developments and how they are affecting visa compliance and processing.
USCIS Budget Crisis
USCIS is a fee-driven agency. Fees pay 96% of its operating costs. It claims the coronavirus has caused a devastating budget shortfall. For four months they threatened to furlough 13,000 of their 20,000 employees. Ironically, a congressional inquiry showed USCIS had a surplus for the fiscal year.
At the end of August, Joseph Edlow, Deputy Director for policy at USCIS, said the agency would avoid the furlough, but institute other cost-cutting measures. As a result, backlogs and wait times would increase.
While things did slow down for a couple of months at the beginning of the pandemic, the number of cases has rebounded to close to pre-pandemic levels.
Moreover, USCIS was set to impose a fee rate hike effective October 2nd that it began planning last November. On average the hike would have been a 21% increase. Just yesterday, September 29th, the new fee rule was halted entirely by the United States District Court for the Northern District of California’s Judge White.
COVID-Related Country Restrictions Extended Through December 2020
Health-related restrictions requiring American citizens and legal permanent residents who have traveled to certain countries to re-enter the U.S. through one of 15 specific airports have been extended through December 31, 2020. These countries include China, Iran, Ireland, the U.K., Brazil and the Schengen area, which covers 26 European countries.
A presidential proclamation that bans residents of those countries from entering the U.S. has also been extended through December 31, 2020. The president made this proclamation on the assumption that these people would compete for jobs that Americans would take given the economic strife in the country.
The ban includes a national interest waiver which makes exceptions for medical professionals supporting the effort to combat COVID-19, spouses of U.S. citizens, lawful permanent residents, and a few other select groups.
Creative Solutions Help and Change Frequently
Among the creative solutions is alternate travel routes to establish 14 days presence in a non-banned location. Recently these diversions have included Croatia, Serbia and the Bahamas.
The Bahamas has been so flooded with people that on September 1 they instituted new travel requirements that include proof of a negative COVID test within 5 days of arrival, an approved Bahamas health visa and mandatory “vacation in place” orders for up to the first 14 days there.
Mexico is still an alternate route option for now, but their U.S. embassy is one of the busiest in the world. With a decreased staff, travelers who qualify for exceptions find appointments take longer to get or are sometimes cancelled.
It is important to monitor daily which countries allow quarantine and can act as a U.S. gateway. With COVID-19 risk driving these restrictions, it is hard to know what the future holds.
It is likely that some of our current restrictions – at least the health-related ones – may be extended into 2021 as well. Foreign nationals may have to delay further trips to see family or to start jobs in the U.S.
On August 19, 2020, U.S. Citizenship and Immigration Services (USCIS) announced that due to delays in production of certain Employment Authorization Documents (EAD’s – Form I-766) that employees may use Form I-797, Notice of Action as valid List C #7 document for Form I-9 purposes. To be valid, the Notice of Action must have a notice date on or after December 1, 2019 through and including August 20, 2020. If an employee presents a Form I-797, Notice of Action as a List C document, then the employees MUST also present a List B document. The Form I-797, Notice of Action is NOT evidence of someone’s identity and cannot be used as a List A or List B document.
Employees may present and employers may accept the Form I-797 Notice of Action showing approval of the employee’s I-765 application as a list C document for Form I-9 compliance until December 1, 2020. By December 1, 2020, employers must reverify employees who presented a valid Form I-797, Notice of Action. Those employees can either provide a List A document or a different List C document for the reverification process.
Additionally, the Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) announced an extension to the flexibility policy for employers and workplaces that are operating remotely which we previously reported on this past March. The extension of the policy is valid through September 19.
U.S. Immigration laws and regulations have always required immigration attorneys to have a certain level of creativity to problem solve. Keeping current on regulation changes, combined with creativity, helped me navigate the paths to my clients’ goals even when they took unexpected turns.
The COVID-19 pandemic has taken creative problem solving and preparedness to a whole new level.
Here are six situations I am helping clients navigate.
Work-from-Home Effect on H-1Bs
U.S. Citizenship and Immigration Services (USCIS) is a traditional organization that has not caught up with some of the modern work world’s innovations. They prefer brick-and-mortar offices as evidence H-1B employees are working.
On a temporary basis, given our reality in many states, H-1Bs working from home is okay within certain parameters. However, if work from home were to become a permanent change, it could jeopardize their status.
Compliance for H-1B Employees Working from Home
H-1B employees working from home need to post the company’s Labor Condition Application (LCA) notice in their home for 10 consecutive days and complete the posting sheet. The posting sheet must then be sent to the employer and placed in the employer’s Public Access File.
Though this procedure sounds silly, it is important to comply with USCIS regulations.
Work and Pay Reduction Effects on H-1Bs
Clients have asked if they can reduce all of their employees’ hours by 20 percent to avoid work force reductions and have their H-1Bs remain in good standing.
The answer is it depends.
If a wage range was listed on the LCA, it will work.
Otherwise, pay reductions would still need to maintain the prevailing wage or risk violating Department of Labor (DOL) regulations and incurring fines. Pay reductions will require filing a new LCA.
Depending on the person’s salary, a ten percent reduction may not negatively impact the H-1B visa holder’s status.
Work Force Reduction Effect on H-1Bs
H-1B status is based on continuous employment during the visa’s duration. Loss of a job jeopardizes the visa. If terminated from the job, the H-1B employee has 60 days to find another one and to amend the H-1B before losing status.
Employers who decide to terminate an H-1B employee must notify the employee and USCIS and offer the employee the reasonable cost of return transportation.
Application Filing During COVID-19
We are in the midst of H-1B filing season and are continuing to file L-1s, Employment Authorization Documents (EADs) and green card applications on behalf of clients.
All applications require a “wet signature,” meaning the applicant signs with ink and there is evidence the application is original, like having an indentation on the reverse side where the pen was pressed into the paper.
For the moment USCIS is accepting copies of wet signatures, but I am having clients send the originals as well just to be ready for any inquiries. E-signatures are not the same and are not accepted.
USCIS’s preference for brick-and-mortar offices to show green card applicants are gainfully employed makes applying for a green card dicey right now. I’m advising clients who can wait to do so.
For others who may be nearing the end of their 6-year H-1B stay, I am helping them assemble the best application possible given the circumstances.
Travel During COVID-19
Many embassies and consulates have reduced or suspended visa processing services. Some posts are starting to accept appointments for late July/early August, such as the U.S. Embassy in London and the U.S. Consulate in Frankfurt.
Acquiring passport photos has become difficult. Walmart is now offering a service where you can upload photos taken following U.S. federal guidelines and they will print them for you to pick up.
Visa holder clients who had been planning to travel because their status was expiring have had to file with immigration because they can’t leave. Clients and their family members who have passports expiring soon have had to get extensions.
Visitors in the U.S. who came via the Visa Waiver Program (VWP), which allows citizens of participating countries to travel to the U.S. for up to 90 days without a visa, have had trouble securing travel for when their 90 days has expired.
The U.S. Custom and Borders Protection (CBP) issued guidance to ports of entry to grant these visitors a 30-day extension via a request for Satisfactory Departure. To avoid jeopardizing their ability to visit the U.S. in the future, VWP visitors need to request Satisfactory Departure before their 90 days expire.
As you can see, the intricacies of immigration regulations coupled with COVID-19 complications require diligence and creative problem solving to keep visa holders in status and applications in process.
On March 20, 2020, the Department of Homeland Security (“DHS”) announced that it would relax its “physical proximity” requirements associated with completion of Section 2 of the Form I-9. Employers can take advantage of this relaxed standard ONLY IF the entire workforce is completely working remotely. If there are employees physically present at the employer’s worksite, there is no exception to the in-person requirement for reviewing original documents for the Form I-9. However, note, DHS will look at the situation on a case-by-case basis if the employee cannot be physically present due to a quarantine or lockdown order. This relaxed standard will be applicable for a period of 60 days from March 20th or within 3 business days after the termination of the National Emergency, whichever comes first.
If the exception applies the employer must do the following to compete Section 2 of the Form I-9 within 3 days of the employee’s first day of work for pay:
Inspect the Section 2 documents remotely (e.g., over video link, fax or email, etc.)
Obtain, inspect, and retain copies of the documents
Complete Section 2
After normal business operations resume, the employee and employer must do the following:
Employee must bring in the original documents that were used to support the Form I-9 within 3 business days so the employer may review them.
After the employer physically reviews the document in person, they should enter “COVID-19” as the reason for the physical inspection delay in the Section 2 Additional Information field.
The employer should also add “documents physically examined” with the date of inspection to the Section 2 additional information field on the Form I-9, or to section 3 as appropriate.
As an alternative, an employer may designate an authorized representative to complete and sign Form I-9 on their behalf. Note the employer is liable for that person’s actions related to completing the Form I-9 and Form I-9 compliance.
USCIS has established new temporary policies that apply to the E-verify process:
Employers are still required to create cases for their new hires within three (3) business days from the date of hire.
Employers must use the hire date from the employee’s Form I-9 when creating the E-Verify case. If case creation is delayed due to COVID-19 precautions, select “Other” from the drop-down list and enter “COVID-19” as the specific reason.
Employers may not take any adverse action against an employee because the E-Verify case is in an interim case status, including while the employee’s case is in an extended interim case status.
Further, on March 21, 2020, USCIS announced that it is extending the time frame to take action to resolve Social Security Administration (SSA) and DHS Tentative Nonconfirmations (TNCs) due to closures. The employer must notify the employee about their TNC result as soon as possible. After the employee is notified of their TNC and decides whether to take action to resolve the TNC, the employee should acknowledge the decision on the Further Action Notice, and the employer should notify E-Verify of the employee’s decision. Employees who choose to take action to resolve a TNC are referred to SSA and/or DHS.
On February 3, 2020 a coding flaw in a mobile app delayed the tabulation and reporting of the Iowa Democratic Caucus results.
This high-profile failure reminds us that technological glitches can show up any time but especially when a system is put to extreme use.
This reminder is the guiding principle for an H-1B preparation strategy this year. A sound strategy involves planning for glitches with back up measures to ensure as smooth an H-1B filing experience as possible.
New changes to the H-1B filing process may introduce several speed bumps to the process of filing petitions.
Electronic Registration Process
This year the United States Citizenship and Immigration Service (USCIS) is implementing several changes to the H-1B petition process.
USCIS’s new requirements include that employers register electronically in advance of filing an H-1B petition and pay a $10 registration fee. USCIS officially announced this new process in the Federal Register on January 9, 2020.
Registration will happen via the organization’s myUSCIS online portal. USCIS launched the myUSCIS portal in 2015. The portal currently permits filing of forms such as I-90, N-400, and N-600, but as of this writing has not yet enabled H-1B registrations. The $10 registration fee will be paid on a separate platform, pay.gov.
Since October, the Department of Labor has been using its new Foreign Labor Application Gateway (FLAG) system to accept Labor Condition Applications (LCAs), which need to be in place before filing H-1B petitions.
Three different systems will play a role in the H-1B cap season this year – FLAG, pay.gov, myUSCIS – two of which are relatively new to the process.
Will the systems need to talk to each other? It is not yet known if myUSCIS will be able to see from pay.gov that the registration fee has been paid. As someone who has occasionally been challenged to get my computer to talk to my printer, this question looms in my mind.
H-1B Filing Timeline
Also new this year is USCIS’s schedule for the H-1B filing process.
While lawyers can establish myUSCIS accounts now, USCIS will only accept initial registrations from March 1 – March 20, 2020. Given the newness of the system and the unknown number of registrations that will be submitted, it is prudent to submit registrations during the early part of this time frame.
Between March 20th – 31st, 2020 USCIS promises to conduct the lottery and to inform registrants who have been selected by March 31. Selected registrants then have 90 days beginning April 1 to submit petitions.
USCIS included a clause in the Federal Register that would allow it to suspend the registration requirement if the system were found for any reason to be “inoperable.” If that were to happen, USCIS would likely return to the prior system and accept paper petitions to count toward the cap on a first come first serve basis. That means the cap could be reached in just a few days as in past years.
Paper records ensured the Iowa Democratic Caucus would still be able to tally votes even if it took a long time. And paper could save the day for H-1Bs this year.
On January 31, 2020, the United States Citizen and Immigration Services (USCIS) announced the release of a new version of the Form I-9, version 10/21/2019. This new version contains only minor changes to the Form I-9 itself and to the Form I-9 instructions.
The one key thing employers must be aware of is that the issuance of the new version of the Form I-9 impacts what version an employer may use going forward. According to the USCIS press release, until April 30, 2020, employers can use either: (1) the new Form I-9, version 10/21/2019 or (2) Form I-9 with a revision date of 07/17/2017 N. On May 1, 2020 employers must use version 10/21/2019 and no other versions of the form will be acceptable for newly completed Form I-9’s as of that date.
The issuance of a new form I-9 DOES NOT mean that employers must redo previously completed Form I-9’s. As stated, this new version will be used on a going-forward-basis no later than May 1, 2020.
The new Form I-9 and related materials can be found here:
In May, we reported on Illinois becoming the eleventh state to permit recreational marijuana beginning January 1, 2020. Noncitizens in these eleven states and the District of Columbia may reasonably conclude that using marijuana in accordance with state law will have no bearing on immigration status. Unfortunately, that is a wrong assumption. Federal law controls immigration, and it remains a federal offense to possess marijuana. For the unsuspecting foreign national, this is a legal distinction that many will not understand. Customs and Border Protection (CBP) Officers at the nation’s borders are the first line of defense in preventing illegal importation of narcotics, including marijuana. U.S. federal law prohibits the importation of marijuana and CBP Officers will continue to enforce the law.
For immigrant marijuana users, federal law prohibits the use
of federal funds to prosecute state-legal medical cannabis, but allows funds to
prosecute state-legal recreational cannabis, thus creating an enforcement
distinction. There will also be increased scrutiny relating to travel outside
the U.S. for green card and Naturalization applicants.
In some jurisdictions such as Colorado, the U.S. Citizenship
and Immigration Service (USCIS) is adding questions to the Adjustment of Status
(green card) interview and medical examination process to determine if a
foreign national uses marijuana or has in the past.
Naturalization eligibility requires the individual to establish “good moral character,” as defined in the Immigration and Nationality Act. A person who engaged in certain conduct as described in the Act is statutorily barred from establishing good moral character. In states such as Washington and Colorado where marijuana has been legal since 2012, the USCIS is aggressively questioning Naturalization applicants regarding marijuana use. For example, a legal permanent resident (LPR) who is applying for Naturalization, and who is in possession of marijuana is barred under federal law from establishing good moral character. The individual will be found to be inadmissible.
Any arriving foreign national who is determined to be a drug
abuser or addict or who is convicted of, or admits to committing acts which
constitute the essential elements of a violation of any law or regulation of
the U.S relating to a controlled substance, is inadmissible to the U.S.
Furthermore, a naturalization applicant who has admitted possessing marijuana
to a federal government official must not travel outside the U.S. The person
may be found inadmissible upon reentry.
There are several legislative efforts afoot in Congress to
resolve the complex issues created by the conflict between federal and state
cannabis laws. In the meantime, though, noncitizens should take a very conservative
Takeaways for noncitizens living in the U.S.:
Never discuss conduct regarding marijuana with a
government official such as a CBP Officer, USCIS, Embassies/Consulates abroad,
If you live in a state that legalized marijuana
consumption, do not use it until you are a U.S. citizen;
Do not carry a medical marijuana card, pot
related stickers, T-shirts, or paraphernalia, and delete any mention of
marijuana on social media; and
If you’ve worked in the marijuana industry, obtain
legal counsel before leaving the U.S. or applying for Naturalization
Stay tuned for further developments in this growing area of