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.
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.
A U.S. Citizenship and Immigration Services (USCIS) memorandum-issued policy is at the heart of a court case challenging recent H-1B visa denials.
The “Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites” memo was issued on February 20, 2018 without any notice or comment period required by the Administrative Procedure Act (APA). The memo directs adjudicators to ensure a contractor has actual and exclusive “control” of the contractor’s employees at the third-party site as a criterion for visa approval. This requirement comes from a rigid interpretation of the Department of Labor’s definition of “employer” which reads: “Has an employer-employee relationship with respect to employees under this part, as indicated by the fact that it may hire, pay, fire, supervise, or otherwise control the work of any such employee….” Instead of considering any one of these circumstances as qualifying, USCIS effectively changed the “or” to an “and,” requiring all of them.
H-1B visa denial rates skyrocketed the past two years, especially
for contractors working at third-party worksites. Denial rates for initial H-1B
petitions in Fiscal Year (FY) 2018 were 1 % for large technology companies but
34%-80% for companies that put H-1B visa holders at third-party sites.
Third-party site work factors highly in IT consulting.
After having many H-1B visas denied or issued for short
validity periods, several IT consulting firms filed lawsuits against USCIS.
Those lawsuits have been consolidated into one under the aegis of the IT
industry trade association ITServe Alliance.
Judge Rosemary Collyer presided over a court hearing of ITServe
Alliance v. USCIS on 05/09/2019. Plaintiff attorneys produced data showing
from FY 2012 to FY 2017, USCIS approved 94 % of their client’s ERP analysts’
H-1B petitions. During FY 2018 to FY 2019, the approval rate dropped to 19%.
Judge Collyer has taken issue with the disparate visa
approval rates between different industries and USCIS’s requirement that
contractors show three years’ worth of specific work assignments for H-1B
petitioners when they are allowed “nonproductive” time as long as they are
As Judge Collyer considers the case, she will rule on
whether discovery is warranted to find out what has caused the different
adjudications of H-1B petitions. Not only are H-1B approval rates markedly down
for the IT industry, but requests for evidence and H-1B petition processing
times have ballooned.
Requests for evidence (RFE) for all H-1B petitions have
jumped from below 30% in first quarter FY 2017 to 60% in first quarter FY 2019.
Meanwhile the number of petitions approved with a completed RFE has sunk from
80 % to just over 60 %.
Stay tuned as we will continue to provide updates as new
The Department of Homeland Security (DHS) announced a
proposed rule on November 30, 2018 that would require H-1B cap subject
petitioners to register electronically with USCIS which would then conduct the
annual H-1B lottery from the pool of timely-filed registrants.
The registration window would open 14 days before the H-1B
filing window opens on April 1 and remain open for 14 days after that date.
Petitioners selected during the lottery would be notified that they are
eligible to file their petition and would have a 60-day window to do so.
The proposed rule would also reverse the order that USCIS selects H-1B petitions under the H-1B cap and the advanced
degree exemption. Currently the agency selects the advanced degree
beneficiaries before filling the H-1B cap. Under the new rule, USCIS would
count all applicants selected against the H-1B cap first, and then select the
ones to receive the advanced degree exemption. Even with the reversal, those
with advanced degrees will still have two chances in the lottery.
USCIS estimates that the proposed
change would result in a 16 percent increase in the number of beneficiaries
holding a master’s degree or higher from a U.S. educational institution.
The proposed rule was published in the Federal Register on
December 3, 2018. USCIS accepted comments on it through January 2, 2019. On
January 11, 2019, USCIS sent a final version
of the proposed rule to the Office of Management and Budget (OMB) for review.
The OMB completed its review on January 25th, and a final rule must be
published in the Federal Register for it to take effect.
USCIS aspires to finalize and implement the new rule in time
for the Fiscal Year 2020 filing season which begins April 1, 2019. Given that
the OMB is scrambling in the wake of the shutdown, and the time it would take
for the normal review process, it is uncertain that the proposed rule will
apply this year.
What is true for this year is that H-1B petitions will
require more strategic planning and upfront preparation than in prior years.
Following the Trump Administration’s Buy American Hire American Executive Order on April 18,
2017, requests for evidence tripled for the past two years. I expect this level of scrutiny to continue
for this year, too.
This means that we need to begin your application earlier,
especially if you have never filed before. Companies filing for the first time
need to apply to have the DOL verify their business and approve a Labor
Condition Application (LCA) before they can file the H-1B petition. Each
of those two processes takes at least 7 days.
After a decade of rapid growth which saw the international student population increase 85 percent to over a million students, the number of newly arriving international students fell 3 percent in the 2016-2017 academic year.
President Trump’s campaign rhetoric and subsequent action as President have contributed to substantial declines in international student enrollment for the current academic year. Across the country the number of new international students declined an average of 7 percent according to a study of about 500 campuses by the Institute of International Education, with 45 percent of campuses reporting at least some decrease.
I encourage education and university clients, and any employer hiring international students to be calm and take a breath. One thing I have noticed about President Trump’s actions is that they have been very consistent with his campaign promises: border enforcement and bans. He wants to move to a merit-based immigration system similar to Canada and Australia.
If the U.S. does move to a merit-based immigration system, international students may gain an advantage. A merit-based system is point-based and prizes highly educated immigrants. Who would be better positioned than those who gained a U.S. college education?
In fact, Sen. Orrin Hatch and Sen. Jeff Flake introduced a bill in the U.S. Senate last week, the Immigration Innovation (I-Squared) Act of 2018, to allow as many as 195,000 H-1B visas. The proposal would increase the number of H-1B visas by 110,000 (from 85,000), while awarding U.S. advanced degree-holders expanded priority in the selection process.
As colleges regroup to recruit internationally in this context, it is recommended that they approach prospects with an eye toward the H-1B visa that international students will ultimately want to apply for. These are students who:
Intend on a STEM major: Engineering majors are the safest bet.
Plan to work in a STEM field or true specialty occupation: Qualifying occupations include doctors, lawyers, teachers and engineers.
Unfortunately, unless a student wants to teach a foreign language, liberal arts students are unlikely to qualify for an H-1B visa.
Colleges may even want to use the possible advantage of U.S. college education in a merit-based immigration system as a recruiting point.
U.S. colleges, universities and employers can weather this intense immigration storm by staying calm and focusing their recruitment on the areas most likely to succeed with visas.
If you are planning to file H-1B applications for your employees this year, now is the time to start the process. While the filing deadline is April 2, 2018, it’s not too early to begin the application, which involves several time consuming steps. As in recent years, the H-1B cap season may be met with an overwhelming number of petitions within a week of the April 2nd deadline. If you plan to file for an H-1B visa this year, starting early will enable us to provide your petition with the best possible shot at winning the lottery and obtaining a visa. We recommend starting to prepare the H-1B application by February 12th.
Did you watch the President address the nation live last week? On November 20, 2014, President Obama announced a series of executive actions, including cracking down on illegal immigration at the border, prioritizing deportation of felons (details of which are still unclear), and requiring certain undocumented immigrants to pass a criminal background check and pay taxes in order to temporarily stay in the U.S. without fear of deportation.
The initiatives include:
– Deferred Action for Parents (DAP). Parents of U.S. citizens and legal permanent residents (LPR’s of any age) who have been continuously present in the U.S. since January 1, 2010, who pass background checks and pay taxes are eligible for deferred action (temporary relief from removal for a specified period of time) for a three year period;
–Deferred Action for ChildhoodArrivals (DACA) to be revised to expand the group it encompasses to include young people who came to the U.S. before turning 16 years old, and have been present in the U.S. since January 1, 2010. It will also remove the 31 year old age cap, paving the way for about 270,000 more people to apply. The work authorization permit will also be increased from two to three years;
-Permit Employment Authorization for H-4 Visa Holders. Currently dependents of H-1B visa holders are not permitted to work. Regulations will be finalized in early 2015;
–Optional Practical Training. The length of time in OPT for Science, Technology, Engineering and Mathematics (“STEM”) graduates will be expanded, although no set time frame for this increase and associated regulations have been outlined;
–Pre-registration for Adjustment of Status. Individuals with an approved employment immigrant petition who are caught in the quota backlogs will be able to pre-register for adjustment of status to obtain the benefits of a pending adjustment. This change is expected to impact approximately 410,000 people;
-I-601A Waivers. Waivers will be expanded to include spouses and children of LPRs;
–Modernization and improvement of immigrant and nonimmigrant programs. Details on this are unclear;
-Enhancements to the Naturalization process; and
-U and T Visas. Three more types of offenses will be added to the list of offenses that can be certified by the Department of Labor.
Preliminary estimates show that approximately 4.9 million individuals may be eligible for the initiatives announced by the President, although there is no way of knowing how many individuals will apply. USCIS won’t begin accepting applications until approximately May 2015, and the new protections could be reversed by a new President. The bottom line is that the only certain provisions will have an immediate impact early next year, such as the DAP and DACA changes. Other proposed changes should be considered more along the lines of “Coming Attractions,” because they require regulations to be implemented. Limited details were offered during the President’s address to the nation, and in his subsequent Memoranda of November 21st. Since the President’s briefing included business employment immigration reform, there is a reasonable expectation for improvements outside of the undocumented community as well.
Last week the “Border Security, Economic Opportunity, and Immigration Modernization Act” (S. 744) was introduced. Since then, there have been a series of congressional hearings to discuss the provisions of the Act. It is clear from the hearings that there are strong opinions on the bill from many communities that would be affected. In general, the bill proposes sweeping reform to the country’s broken immigration system. A summary of the main sections covered by the bill is as follows:
Border Security – improving border security including increased surveillance and patrol
Legalization and Legal Immigration – work authorization and path to citizenship for individuals currently in the United States with unlawful status; requirement to pay back taxes as part of the application process
Legal Immigration – overhaul of the current system for family and employment based immigration
Mandatory E-Verify and Increase/Additional Penalties – all employers would be required to use the E-Verify system for employment verification in addition to the Form I-9 within the required phase in periods; employers with more than 5,000 employees would be phased in within 2 years, employers with more than 500 employees will be phased in within 3 years and all employers within 4 years; significant fines from $3,500 – $7,500 per worker for knowingly hiring or continuing to employ unauthorized aliens and fines for failure to comply with E-Verify use requirements; establishes the potential for an electronic Form I-9 in conjunction with E-Verify
H-1B Visa Reform – increasing the current cap for the H-1B visa category, additional regulations aimed to curtail alleged H-1B abusers by requiring “H-1B dependent employers” to pay significantly higher wages and modification of application/posting requirements for all H-1B employers
New W-Visa Program for Lower-Skilled Workers – new visa category for foreign workers to perform services or labor for registered employers in registered lower skilled positions; the number of visas in this new category would fluctuate annually and is dependent on unemployment rates, job openings, bureau recommendations and additional data
Agricultural Job Opportunities – current undocumented farm workers will have an opportunity to obtain legal status
Employers should be aware that the congressional hearings have begun and nothing in the current bill is set in stone. The bill is certain to go through rounds of revisions before it is set for any vote before the Senate or the House of Representatives. However, at least thus far, mandatory E-Verify is a pillar of the bill and its continued inclusion seems certain.
Since, in recent years, the government has only increased its enforcement of I-9 and immigration compliance, employers should consider reviewing their current processes and policies in advance of any implementation of mandatory E-Verify. Further, as a reminder, employers MUST utilize the new Form I-9 (Rev. 03/08/13)N no later than May 7, 2013. Starting on May 7, 2013, employers are not allowed to use prior versions of the Form I-9 for employment verification of new employees.
The H-1B visa category is used by employers hiring a foreign national in a professional-level position (“specialty occupation”) requiring at least a Bachelor’s degree or the equivalent. Typically, H-1B petitions are filed for foreign nationals hired from abroad, or for F-1 and/or J-1 students who are currently working in the U.S. pursuant to student status work authorization. The U.S. Citizenship and Immigration Services (USCIS) will begin accepting H-1B petitions on April 1, 2013, with a start date of October 1, 2013 (FY 2014).
There is an annual cap of 65,000 new H-1B petitions permitted per fiscal year, with an additional 20,000 H-1B’s available for foreign nationals who have earned a U.S. Master’s degree or higher, who are exempt from the H-1B cap. In addition the special rule pertaining to foreign nationals who have earned a U.S. Master’s degree or higher, petitions for new H-1B employment are exempt from the annual cap if the foreign national will work at an institution of higher education or related or affiliated nonprofit entities, nonprofit research organizations or governmental research organizations.
While last year the H-1B cap was reached in mid-June, it is anticipated that the quota will be reached earlier this year. Of course no one has a crystal ball to say exactly when the cap will be exhausted. Consequently, it is advisable to file an H-1B petition by April 1, 2013. Beware, the first step of the application process is filling the Labor Condition Application (LCA) with the Department of Labor, which can delay the application process.
Typically, it takes approximately five toseven days for an LCA to be certified, and the LCA must be certified before filing the H-1B petition with USCIS.
In a recent settlement announced by the Department of Labor (DOL) in June 2012, Semafor Technologies, of Norcross, Georgia, agreed to pay workers $741,288 in back wages to H-1B workers. The DOL’s Wage and Hour Division found violations of the H-1B visa program, which permits foreign nationals to work temporarily in the United States. Semafor Technologies is an IT company specializing in software development, on-site/off-site outsourcing, consulting and product development services.
An investigation conducted by the DOL’s Atlanta district office determined that Semafor Technologies failed to pay 54 H-1B workers during periods of time in which they were not productive because the company did not assign them any work. This practice is called “benching,” and is not permitted under the H-1B DOL regulations. Employers must continue to pay foreign nationals in H-1B status even if there is no work to be performed. In addition, five workers were not reimbursed for various processing fees related to their employment, and 14 were not reimbursed for processing fees or paid for periods without assigned work.
The Director of the DOL’s Atlanta office commented “as demonstrated by the resolution of this case, we are using all tools available to remedy violations, promote accountability, and ensure a level playing field for law-abiding employers and legitimate users of the foreign guest worker programs.”
DOL regulations clearly impose H-1B costs on the employer as a business expense, and not the employee. Employers should pay all expenses related to the processing of H-1B visa petitions, including attorney’s fees and government filing fees. The Semafor Technologies case demonstrates that employers who pass along any part of the H-1B processing fees to employees are creating possible exposure to DOL employer sanctions.