As our planet emerged from the worst ravishes of the COVID-19 pandemic, we experienced a number of factors that impacted U.S. immigration. This article reviews some of the issues we saw in 2022 and how they impacted immigration in the United States. We also explore the possibilities for 2023, whether the economy continues to struggle or we see a nice economic rebound.
Easing of COVID Travel Restrictions
The COVID-19 pandemic posed a grave threat to the health, safety and security of citizens of every country and, as a biproduct, brought the international travel industry to a near standstill. Thankfully, as we approach the end of 2022, recovery of the global travel industry is well underway and restrictions on international travel are easing. Given this exciting news and the time of year, we are providing an update on the current status of U.S. travel restrictions for the holiday season.
One of the most important issues we experienced related to international travel has been the ability to secure visa appointments at U.S. consular posts around the world. Some countries, India in particular, have experienced significant backlogs. As a result, it has been important to understand how to navigate the process of requesting expedited visa appointments. Proving the need for emergency travel has become critical for international travelers coming to the United States for business travel or work purposes. The process varies from post to post, but the threshold for making successful arguments has emerged and we have had significant success helping clients make these expedited appointments.
To combat the spread of COVID-19 and to protect the U.S. labor market throughout the pandemic, the United States government enacted several measures to limit the entry of non-U.S. citizens to the United States. These measures included, but were not limited to, requiring all non-U.S. citizens traveling to the United States by air to show results of a negative COVID-19 test to board flights bound for a U.S. port of entry. Additionally, all travelers enroute to the United States by land or air, were required to provide evidence of their full vaccination status to gain admission to the United States. Moreover, all travelers were required to adhere to a strict mask mandate while on aircrafts traveling to the United States and in major travel hubs, such as airports and train stations, within the United States.
With case numbers continuing to diminish, these restrictions have eased. All non-U.S. citizens traveling to the United States by air are still required to show proof of full vaccination status to gain U.S. entry. However, as of June 2022 international travelers are no longer required to show a negative COVID-19 test result to board a flight to the United States. Additionally, the federal mask mandate requiring masks on public transportation, conveyances, and at transportation hubs is no longer in effect. Individual airlines and airports may still require travelers to wear a mask, but the mandate is no longer being federally enforced. Please note that the CDC continues to recommend that people wear masks in indoor public transportation settings at this time.
H-1B Cap
The H-1B program allows U.S. companies to temporarily employ foreign workers in professional occupations typically requiring a minimum of bachelor’s degree or higher, or its equivalent. Congress has a mandated cap of 65,000 H-1B visas (commonly known as the “regular cap”) and an additional 20,000 H-1B visas for beneficiaries who have earned a U.S. master’s degree or higher (commonly known as the “advanced degree cap”). For nearly a decade, USCIS has received more H-1B petitions than it can accept for processing, which results in the use of a computer-generated random selection process (the “H-1B Lottery”). Each year, foreign nationals applying for an H-1B visa take their chances with the H1B lottery. Foreign nationals selected in the lottery are notified and invited to submit their full H-1B petition within the specified deadline, which is typically 90 days from the notification date. If 85,000 H-1B petitions are not properly filed by the specified deadline, a second or even potentially a third lottery is held.
However, on August 23rd of this year, USCIS announced that it had received a sufficient number of petitions needed to reach the congressionally mandated 65,000 H-1B visa regular cap and the 20,000 H-1B visa master’s cap, for fiscal year (FY) 2023. 127,600 H-1B registrations were selected in the first lottery and, of that group, USCIS received at least 85,000 H-1B petitions that were filed properly. This meant that, unlike for the 2022 cap, USCIS would not run a subsequent lottery for additional applicants. Thus, unsuccessful H-1B applicants must now consider other visa avenues or wait until the next year before re-applying for an H-1B visa.
In 2020, USCIS implemented an electronic registration process for the H-1B cap. Prospective petitioners seeking to file H-1B cap-subject petitions, including for beneficiaries eligible for the advanced degree exemption, must first electronically register via this system and pay the associated USD $10 registration fee for each prospective beneficiary. March 1, 2023 marks the first day that USCIS will begin accepting H-1B registrations for the fiscal year 2024, which will start on October 1, 2023. It is expected that the registration period will be open from March 1 – March 18, 2023. Given the tight time frame for registration, employers should begin identifying their H-1B needs, considering potential applicants, and discussing their strategy with their Graham Adair attorney today.
Companies should also consider strategies for those not selected in the H-1B lottery. For those from certain countries, there are other work visa options such as E-3, H-1B1 and TN. There are also visas based on investment, intracompany transfers, international student status, and cultural exchange programs.
Long Processing Times of PERM Applications
The Green Card process is threefold, comprising of the PERM process, which is a test of the labor market; the I-140 petition for immigrant worker, and finally the I-485, Adjustment of Status, which is the application for the actual green card.
Historically, the PERM process has been relatively fast in terms of government turnaround times. Unfortunately, since the pandemic began processing times have been increasingly longer every month. As of October 2022, the average processing time for all PERM applications is 249 days. This time does not include the time taken if there is a PERM Audit. If there is an Audit, the average processing time will extend by an additional 119 days on average. Currently, the DOL is processing PERM applications submitted in February 2022.
STEP 1- PERM PROCESS AND STEP-BY-STEP PROCESSING TIMELINE:
The total processing time for PERM varies based on the time taken for each step in the process.
- Prevailing Wage Request: The first step in the PERM process is to obtain a prevailing wage determination from the U.S. Department of Labor (DOL). All prevailing wage requests are submitted directly to the DOL using form ETA 9141. The PERM prevailing wage is the average wage paid to similarly employed workers in a specific occupation in the area of intended employment. This means that DOL will take several factors into account when determining the prevailing wage for your position. The average current processing time for this step is approximately 7-8 months. Currently, DOL is processing requests submitted in April 2022
- Recruitment Process: In this step, the employer must prove that there are no qualified U.S. workers for the position and that the foreign national is indeed the best candidate for the position. The job posting will run for 30 days after which the employer has to wait an additional 30 days. The additional 30 days are for resume screening and for interviewing. So, the minimum time for recruitment is 60 days. If there are minimally qualified U.S. workers who would accept the position if it were offered to them, the PERM process cannot be continued. However, a new PERM process can be completely restarted after a six-month waiting period.
- ETA-9089 Application: This is the application form submitted to the DOL by the employer to obtain the permanent labor certification also known as the PERM certification. This essentially concludes the PERM Certification Phase of the process. As mentioned above, the PERM certification is currently taking up to 1 year approximately without an audit and longer than a year if an audit is issued. We need the labor certification to be able to proceed with the next step.
The DOL provides frequent updates about current processing times, and this can be found here https://flag.dol.gov/processingtimes.
STEP 2- I-140 APPLICATION
The I-140 petition is filed with USCIS by an employer for a noncitizen worker to become a permanent resident in the United States. The processing time for I-140 petition is approximately 4-6 months under regular processing. There is a premium processing option for I-140 petitions that allows a decision within 15 days. When your priority date becomes current, we can file the Adjustment of Status application. Where priority date is current at the time of filing the I-140, we can concurrently file I-485, AOS with the I-140.
STEP 3- ADJUSTMENT OF STATUS (I-485) APPLICATION
This is the last step in the extremely long green card process. AOS is the application that you can submit to apply for lawful permanent resident status (also known as applying for a Green Card) when you are present in the United States. This allows you to get a Green Card without having to return to your home country to complete visa processing. The processing time is at least a year as long as priority date remains current.
Employers may need to recalibrate company policy to ensure they start employees’ PERM processes early due to the long wait times. If a PERM process is started too late, an H-1B employee might not be far enough down the road to extend beyond the 6-year limit for H-1Bs. It is important to consult and strategize ahead of time to avoid unnecessary delays.
The Effect of Relocation
In 2020, we saw an influx of employees transition to a fully remote or partially remote work model as a result of the COVID-19 pandemic. In 2022, we saw that employers continued to allow their employees to work from home for at least part of the work week, with some employers continuing to allow full remote work. The rise of remote work has raised many questions relating to foreign national workers in the U.S.
Non-immigrant Visas
The H-1B visa is the most restrictive on worksite location and changes in worksite due to the Labor Condition Application (LCA) requirements. An LCA must be filed and certified by the Department of Labor (DOL) prior to the filing of an H-1B, H-1B1 or E-3 petition. Prior to the submission of the LCA to the DOL, the LCA must be posted at the employee’s work location/s to put workers on notice that the LCA is being filed. Unlike the H-1B, there is no specific guidance for worksite changes for E-3 and H-1B1 workers. However, we still recommend following the same protocols mentioned below for E-3 and H-1B1 workers.
Employers are required to file H-1B amendments when there are “material changes” to the work conditions of an employee in H-1B status, such as relocation outside the area of intended employment. The regulations define the area of intended employment as “the area within normal commuting distance of the place (address) of employment where the H-1B nonimmigrant is or will be employed.”[1] Additionally, if an LCA is filed within a Metropolitan Statistical Area, there is clearer guidance. Specifically, “[i]f the place of employment is within a Metropolitan Statistical Area (MSA) or a Primary Metropolitan Statistical Area (PMSA), any place within the MSA or PMSA is deemed to be within normal commuting distance of the place of employment . . .”[2] This means that if an H-1B employee transitions from working fully in office to working from home within the same MSA, an H-1B amendment is not required. However, LCA notices must be posted at the new worksite (home address) in two conspicuous locations (i.e., home office, kitchen, living room, etc.) for 10 consecutive days. Thereafter, the notices should be placed in the employee’s Public Access File.
If an employee in H-1B status does move beyond commuting distance or outside the MSA or PMSA, that would be a material change and an H-1B amendment would be required. The LCA and H-1B amendment must list the employee’s new home address as their work address. Note that the employee cannot begin working at the new address until the H-1B amendment is filed with the USCIS. However, an approval is not needed before the employee can begin working.
Companies must ensure adequate notice is given before a move, so that a qualified immigration attorney can assess whether an amendment is required and timely file the amendment if needed.
PERM and I-140
As mentioned above, the first step in the green card process for most employment-based foreign national workers is the PERM process. Once the PERM is certified by the DOL, an employer must file an I-140, Immigrant Petition for Alien Worker with USCIS. The employer is required to show that it has the ability to pay the wage offered, that the foreign national possesses the education, experience and skills required in the PERM application, and that they are offering the same position as listed in the PERM.
Similar to the H-1B process, the PERM Labor Certification is location specific. Moving to a different primary worksite or switching to full remote work may require revisions to a pending PERM process or may require the filing of a new PERM and a new I-140. However, there are instances when the filing of a new PERM is not required. For instance, moving within the same MSA may not require the filing of a new PERM. Second, if an option to work from home, what we generally call “telecommuting”, was included in the Labor Certification, then a new PERM is generally not required. Last, if the employee plans on returning to the work location listed in the PERM by the time their green card is issued, a new PERM may not be required.
When the Economy Improves
Once current global economic challenges are behind us, the hiring needs of many companies will likely increase. This increase could further limit the availability of numerically capped nonimmigrant work visas like the H-1B visa. Earlier this year, as companies experienced a slight return to pre-pandemic hiring levels, USCIS received 483,927 registrations for the 85,000 available visa numbers and randomly selected 127,600 registrations, 37,600 more registrations than available visa numbers. This means that the chance of selection for this year’s lottery was roughly 26%.[3]
As it may be difficult to obtain an H-1B visa once the economy picks up again, it will be prudent for companies to consider long-term employment alternatives to the H-1B visa.
Some of our clients consider having employees who are unable to obtain an H-1B visa transfer to an overseas office to work abroad for a year and apply for the L-1 intracompany transferee visa once that year is complete. The L-1 visa is available to intracompany transferees who work as managers/executives (L-1A) or who possess specialized knowledge (L-1B) and requires that the foreign national worked with a qualifying organization (a parent, branch, affiliate or subsidiary of the U.S. petitioning company) at least one continuous year within the 3 years preceding the application.
Another option is having the employees reenroll in another academic degree program in the U.S., but this option carries some risk for future H-1B petitions if USCIS determines that the employee was not maintaining their nonimmigrant status. This can happen if it is determined that the “primary purpose” of their F-1 status was not for student-related activities.
An employee who enrolls in another degree program can apply for Curricular Practical Training (CPT). CPT is authorized in the first semester if it is related to the program of study. Further, CPT must be an integral, or essential, part of the program of study. It is imperative that the employee be able to prove that CPT was required in the first semester in order to prevent issues with securing long-term work authorization down the road.
Another aspect to consider after the current economic cooling is layoffs. Layoffs can impact green card processes for employees and cause delays. When a worker is laid off in an occupation related to the job opportunity and in the same geographic area involved in a PERM labor certification, it is prudent to wait six months to file the application. So once hiring ramps up again and companies are willing to sponsor more employees for the green card, it will be a good idea to look at the potential ramifications that layoffs can have on future green card sponsorship.
When ramping up hiring needs following an economic downturn, there are steps that employers may want to take to foster smooth onboarding. Thoroughly screening candidates to ensure that they meet the eligibility requirements for a particular nonimmigrant visa is important when business needs necessitate expediting the hiring process. Graham Adair assists its clients with the screening process through reviewing detailed job duties and the tools/skills needed to complete duties.
As more companies ramp up hiring needs, the field could become competitive and companies will need to come up with strategies to attract and retain top talent. This may involve green card sponsorship upon hiring, or sponsoring costs that are typically absorbed by the candidate, including paying for dependent spouse work authorization applications or paying to premium process nonimmigrant petitions filed with USCIS.
If Economy Stays Flat or Takes a Dive
The International Monetary Fund recently published its World Economic Outlook, in which it explains that “[g]lobal economic activity is experiencing a broad-based and sharper-than-expected slowdown, with inflation higher than seen in several decades.” The IMF predicts that global growth will slow to 2.7% in 2023 and indicated that this coming year “will feel like a recession for millions around the world.” Aside from the global financial crisis and the acute phase of the COVID-19 pandemic, this is weakest growth profile since 2001.
Impact of RIFs and alternative employment options
Given the current and predicted state of the economy, and as business needs change, many companies are considering reductions in force (RIFs). Foreign nationals may find themselves subject to mass layoffs and may be concerned about the implications of a layoff on their nonimmigrant status. 8 C.F.R. § 214.1(l)(2) provides a 60-day discretionary grace period upon termination of employment for foreign nationals admitted in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 or TN classification and their dependents. Those individuals seeking to benefit from the grace period must have a valid I-94 for the duration of this 60-day period, which starts immediately following the last official day of employment. The grace period can only be used “once during each authorized validity period”, meaning once per every nonimmigrant status approval. During the grace period, foreign nationals holding valid nonimmigrant status have the following options:
Transfer to a new employer
If the foreign national is in H-1B or E-3 status, they can transfer to a new employer during the 60-day grace period. We recommend including evidence of the termination date in the form of a letter or similar communication.
Change to another status
Foreign nationals holding nonimmigrant status can also apply for a “change of status.” Options include F-1 status (requires enrolling in a university); H-4 status (if they are a family member of an H-1B visa holder); L-1 status (if they previously worked for an affiliated company abroad within the requisite time period); J-1 (as an exchange visitor); or some other work status. We recommend applying for the change of status as soon as possible after learning of the termination.
Depart the United States
If the foreign national is terminated by their employer and chooses to depart the United States and is in H-1B, H-1B1, or E-3 status, the employer must agree to pay the employee the reasonable costs of return transportation abroad if employment is terminated prior to the end of the authorized employment period. However, the employer is not required to pay the transportation costs for dependent spouses, children, or household goods.
Impact on the PERM process
Another major concern for foreign nationals is the effect a layoff may have on the labor certification or PERM process. The PERM labor certification involves special rules that apply in the event of Reductions in Force (RIF), especially those that occur within the 180-day period immediately preceding the filing of the PERM application. Specifically, 20 CFR §656.17(k) explains that if an employer has had a layoff in the area of intended employment within six months of filing the PERM application that involves the same job, or a related job, then the employer has to document that it has notified and considered all potentially qualified laid off U.S. workers for the job opportunity and document the results of the notification and consideration. PERM cases invoking the layoff provisions are likely to trigger an audit, so it may be advisable for an employer to wait until six months after a layoff before filing a PERM labor certification application.
Labor certifications are employer and job specific, meaning they cannot be transferred to another employer. If an employee is termed during the PERM process, the labor certification becomes null, and the foreign national will have to restart the process with a new employer.
Impact on the green card process
Relatedly, foreign nationals may be concerned about the effect a layoff will have on the I-140 and I-485 stages of the green card process. Once USCIS approves the I-140 petition and the beneficiary’s priority date becomes current, the foreign national can apply for adjustment of status (green card) by filing the I-485 application. If the foreign national is termed while waiting for their priority date to become current, meaning that they have not yet filed the adjustment of status application, the foreign national will need to find a new employer to restart the PERM and I-140 processes. However, USCIS will allow the foreign national to retain their original priority date.
If employees I-485 applications have been filed and pending for at least 180 days, they can move to a different employer and “port” the application so long as the new position is similar to the position listed on the I-140 petition. In this situation, the foreign national must submit Form I-485 Supplement J for USCIS to continue to process the adjustment of status application.
Ways companies can trim immigration budgets
In addition to RIFs, employers looking to decrease their immigration budgets may also consider no longer paying for premium processing of eligible petitions, dependent applications, and EAD/AP applications. They may also look at the current status and timing issues for their entire international employee population to identify which individuals need to start the green card process right away versus those who can afford to wait based on their maximum allowable period of stay in the United States.
It is important for companies to carefully review immigration policies to pinpoint areas where costs can be reduced without impacting overall business objectives. For example, some companies may want to confine immigration sponsorship to only positions that are difficult to recruit, or higher level positions instead of entry-level positions that require a lot of training.
H-1B benching
Benching occurs when an employer places an H-1B in unpaid, nonproductive status in violation of federal law. According to the Department of Labor, “H-1B workers must be paid the required wage rate for all nonproductive time caused by conditions related to employment, such as lack of assigned work, lack of a permit, or studying for a licensing exam.” Accordingly, at any point when an H-1B employee is not performing work or not in productive status due to a decision of the employer, the employee must still continue to receive the wage listed in the Labor Condition Application (LCA) filed in connection with the H-1B petition. In other words, even in instances of plant closures, holidays, or other periods of nonproductive time, which affect both U.S. and H-1B workers, H-1B employees must be paid their wages. DOL has prohibited benching to protect foreign workers from unfair treatment and to ensure that the job opportunities and wages of U.S. workers are also protected. Employers failing to abide by these requirements face potential penalties, including civil fines and a ban from participating in the H-1B or other programs. They are also subject to potential lawsuits from H-1B employees wishing to seek lost wages.
Reducing Salaries
Some employers may be considering salary decreases in lieu of layoffs. If this is the case, employers of foreign workers must comply with additional federal regulations, particularly those that relate to employees in H-1B or E-3 status. If an employer is looking to decrease the salary of an H-1B or E-3 employee, the new salary must still meet the prevailing wage listed on the LCA. Otherwise, the employer is required to file an amended petition and LCA.
If employers feel they cannot pay the wages specified in their LCAs, they have several options. One option is to file an H-1B amendment to change the foreign national’s employment status to part-time. A second option is to terminate the employee. But in no case should the employer reduce the base salary below the relevant LCA prevailing wage.
The past few years have been very interesting in the world of employment-based immigration. Companies have had to navigate an increasing number of challenges to an already complex process. We anticipate that these challenges will continue into 2023, and could exacerbated if the economy experiences a downturn. Advance planning is important during these times to ensure companies aren’t exposing themselves to liability and are maximizing their immigration program, especially in the event of reduced budgets.
[1] See 20 C.F.R. § 655.731(c)(7)(ii).
[2] See 20 C.F.R. § 655.715.
[3] Those in the advanced degree cap actually had a higher likelihood of success because a lottery is first run for only those with advanced U.S. degrees. Any applicants not selected in the advanced degree lottery were then placed into the regular lottery, thereby giving them another chance of selection.