Categories Compliance Department of State News & Updates USCIS

When Does Your Immigration Status Expire? How to Interpret I-94, I-797, and Visa Documents.

Do the terms visa, i-94 and i-797 confuse you? How do you find out what is your authorized period of stay in the U.S and what determines that period? 

The difference between the visa expiration date and the length of time you have permission to remain in the United States can be confusing. To avoid violating your authorized stay, it is important to understand the difference between a U.S. visa, I-94, and I-797.

  • U.S. VISA
    • A visa is a travel document. A U.S. visa in a foreign national’s passport gives permission to apply to enter the United States. A visa by itself doesn’t authorize entry to the U.S. A visa simply indicates that your application has been reviewed by a consular officer at a U.S. Embassy or Consulate, and that the officer determined you’re eligible to travel to a U.S. port-of-entry for a specific purpose. The port-of-entry can be an airport, a seaport or a land border crossing.
    • A visa does not guarantee entry into the United States. Additionally, the visa expiration date shown on your visa does not reflect how long you are authorized to stay within the United States. Entry and the length of authorized stay within the United States are determined by the Customs and Border Protection (CBP) Officer at the port-of-entry each time you travel.
    • The visa expiration date is shown on the visa along with the visa issuance date. The time between visa issuance and expiration date is called your visa validity. The visa validity is the length of time you are permitted to travel to a port-of-entry in the United States.
    • A U.S. visa shows when and how many times you may seek admission to the United States from abroad based on the classification noted on your visa. It doesn’t control the length of your stay. Depending on your nationality/purpose of travel, visas can be issued from a single entry (application) up to multiple/unlimited entries.
  • FORM I-94
    • Upon arriving at a port of entry, the CBP official will determine the length of your visit. On the admission stamp or Form I-94 (Can be retrieved from https://i94.cbp.dhs.gov/I94/#/home), the U.S. immigration inspector records either an admitted-until date or “D/S” (duration of status). If your admission stamp or Form I-94 contains a specific date, then that is the date by which you must leave the United States.
    • If you have D/S on your admission stamp or Form I-94, you may remain in the United States as long as you continue your course of studies, remain in your exchange program, or qualifying employment.
    • The admitted-until date or D/S notation, shown on your admission stamp or Form I-94 is the official record of your authorized length of stay in the United States. You cannot use the visa expiration date in determining or referring to your permitted length of stay in the United States.
    • Your passport must be valid for your entire requested period of stay in the United States, because your Form I-94 will be issued only until your passport expiry date, even if you have an I-797 Approval for a longer period of time.
    • It is also pertinent to note that many major airports are no longer stamping passports for most classes of admission. Instead, each time you enter the U.S., the U.S. Customs and Border Protection (CBP) creates an online, electronic entry record, i.e., the I-94 to record your entry to the U.S. The I-94 record will be your only official record of entry to the U.S.
  • I-797
    • USCIS issues an I-797 Notice of Action when a nonimmigrant petition or application is approved. The I-797 reflects the visa classification (H-1B, L-1A, F-1, etc.) you, the foreign national have been approved for and the validity period for the nonimmigrant status authorized by USCIS.
    • Any additional period given at the bottom of the I-797 notice cannot be considered as employment authorization period. It is only a grace period given on discretionary basis to either file for extension/ change of status or make arrangements to depart the country.

The latest I-94 received by the foreign national dictates the period of stay in the U.S. It could be an i-94 issued by CBP official at port of entry or by USCIS at the bottom of the I-797 Approval. In other words, whichever i-94 is latest needs to be considered.

For example: If you received an H-1B I-797 approved from 03/15/2022, valid until 12/31/2022 but you entered the U.S. on 03/20/2022 utilizing a previously issued H-1B visa and I-797 notice valid until 08/30/2022, you might be issued an I-94 valid only until 08/30/2022. In this situation, your period of stay ends on 08/30/2022 and not 12/31/2022 because the event of your entry succeeded the issuance of approval by USCIS.

To conclude, please verify the dates whenever you receive a new I-94 either at Port of Entry or from USCIS to ensure that your stay in the U.S. is authorized. If the stay as shown on your Form I-94, Arrival/ Departure Record, has already expired, USCIS will most likely not grant an extension of stay unless there are compelling unforeseen circumstances beyond your control prevented you from filing an extension of stay, on time. It is important to be aware and conscious of your status expiry date, as an overstay or violation of status may cause you to be ineligible for a visa in the future for return travel to the United States.

Please contact your Graham Adair attorney with any case specific questions or contact us at info@grahamadair.com; +1 408 715 7067.

Categories Compliance Department of Labor News & Updates

PERM Recruitment Impacted by Equal Pay Transparency Laws

Recently enacted Equal Pay Transparency (EPT) laws will affect compliance with mandatory recruitment on PERM Labor Certification cases. Companies must stay on top of these new EPT requirements, as well as additional states that might follow suit in the near future with EPT laws of their own.

 

New York City’s EPT law recently went into effect on Tuesday, November 1st. The law requires New York City employers to include salary ranges in job postings. Employers with more than four employees and at least one employee based in the city are subject to the law as well as all employment agencies operating in the city, regardless of employee count. Violators of the law will have 30 days to correct their actions, either through changing the job posting, paying damages to employees, or undergoing training. Noncompliant employers can be charged up to $250,000 in fines.

 

The NYC legislation is the latest EPT law to go into effect in the U.S. Colorado implemented an EPT law in January 2021, and California and Washington state passed EPT laws that will go into effect in January 2023. Meanwhile, New Jersey, Ohio, Connecticut, Maryland, and Nevada EPT rules are already in place.

 

EPT laws were passed in an effort to protect employees from pay discrimination, but employers interested in sponsoring the green card process for foreign national employees will also be impacted by the passage of such laws. The PERM labor certification is often the first step in the employment-based green card process, and requires a U.S. employer interested in hiring a foreign national to “test the labor market” by conducting recruitment to show that there are no qualified, willing, and available U.S. workers to assume the job opportunity. Although the PERM regulations do not explicitly state that salary must be disclosed in job postings, it is prudent for employers testing the labor market for PERM purposes to comply and disclose salary information. Thus far, only the state of Colorado has exempted PERM labor market test job postings from its EPT law.

 

Companies filing cases in any of these states or localities should consider whether to only provide salary information in locations subject to EPT laws, or whether it makes sense to do it on all cases. It’s possible that more states will enact EPT laws in the future.

 

If you are unsure of whether your business is currently or will be impacted by EPT laws, please contact us at: info@grahamadair.com; (408) 715-7067.

Categories Compliance Department of Labor News & Updates USCIS

Remote Work, the new norm – What are the immigration considerations?

Following the COVID-19 pandemic, remote work has now become a key talent management, recruiting, and retention tool.  Employers must understand the immigration considerations for employees on various work visas.

 

What to know about H-1B Visas and Remote Work

 

The most popular work visa, the H-1B visa, already has regulations in place regarding a change in work location. An H-1B worker’s employment is specific to the worksite listed on the labor condition application (LCA) and requires notice if the location is to change.

 

To comply with U.S. Department of Labor (DOL) regulations, employers must act prior to changing the worksite location.

  • If there are no material changes to the terms of H-1B employment and the new/home worksite falls within the same metropolitan statistical area limits[1] and normal commuting distance of the original worksite noted on the LCA, then the certified LCA or a posting notice must be posted in two conspicuous places at the new/home worksite for 10 days.
  • If the new/home worksite falls outside of the metropolitan statistical limits and normal commuting distance of the original worksite noted on the LCA, there is a DOL Short-Term Placement Rule whereby employers may place H-1B workers at a worksite not listed on the approved LCA for up to 30 workdays in aggregate each calendar year.
  • If there are material changes to employment, or the COVID-19 quarantine lasts longer than 30 workdays and the short-term placement rule is exhausted, then the employer must file a new LCA, i.e., an H-1B amendment petition to cover the new/home worksite.

 

What to know about Other Work Visas and Remote Work

 

Some of the other common work visas include E-1, E-2, L-1, O-1, TN, and F-1 visas. While these types of work visas do not have the same legal requirements relating to prevailing wages and changes in work locations as H-1B visas, there are important considerations for these employees as well.

 

Due to rise of remote work and hybrid work options, the question that arises is what the employer obligations towards foreign nationals on these work visas are. Generally, E-1, E-2, L-1, O-1, TN, and F-1 visas are not location specific, so there is some flexibility regarding physical work location for these employees.

 

Employers are only required to file a new petition for these employees when there is a material change to the job and a change in work location is typically not considered a material change for the above-mentioned visa holders. If the employees are still in the same position and performing the same job duties from home rather than at a worksite, an amended petition is not likely required.

 

However, while no regulation prohibits L-1 employers from adopting a work-from-home policy, they should be aware that USCIS, through its Fraud Detection and National Security (FDNS) unit, may conduct unannounced site visits to investigate activities at the office listed on the L-1 employer’s visa petitions. For employees in L-1 status, USCIS will likely be forgiving of any remote work arrangements based on the number of policies the agency has relaxed to minimize the impact of COVID-19.

 

USCIS also routinely conducts site visits to ensure compliance with the underlying STEM OPT training plan for F-1 students. For employees in F-1 status, Immigration and Customs Enforcement (ICE) is responsible for the F-1 student program.

  • Students participating in STEM OPT do not need to submit an updated Form I-983 to report remote work. Please see https://www.ice.gov/doclib/coronavirus/covid19faq.pdfFAQ for SEVP stakeholders about COVID-19 released by ICE, updated on May 31st, 2022.
  • In March 2020, ICE had announced its intent to relax its standards and encouraged teleworking as an option. Since the 2020 guidance still holds good for the 2022-2023 academic year, it is unlikely that employers will experience any issues with temporary remote work for F-1 students participating in OPT.

 

What to know about the pending Green Card process and Remote Work

 

When a foreign national whose on-going green card process temporarily moves to a remote work location due to COVID-19, the question is what are the impacts on the impending process?

 

When the labor certification has not yet been filed: PERM (“Program Electronic Review Management”) also referred to as “Labor Certification,” program requires employers to attest, under penalty of perjury, that the employer has engaged in a recruitment effort to locate a minimally qualified U.S. worker for the position to be held by the foreign national employee. This recruitment must sufficiently apprise U.S. workers of where the job must be performed. Therefore, if the labor certification has not yet been filed, it is recommended to update the PERM position description to reflect remote work language. This may involve resubmitting a prevailing wage request or re-running recruitment.

 

In all other situations, if the sponsored employee intends to return to the work location listed on the application once normal operations resume, there will be no impact to the process.

 

Since there is no clear guidance on how remote work should be treated in the PERM context, it is important to consult with an immigration attorney to assess any impact of remote work outside commuting distance of the job location listed on your PERM, to your permanent residency process.

 

If an employee changes work locations after the PERM filed stage and does not intend to return, the process will likely need to be restarted for the new work location.

 

We’re Here to Help

 

While immigration rules are constantly being updated to adapt to situations like the COVID-19 pandemic, it is important for employers to comply with immigration requirements and evaluate situations on a case-by-case basis by consulting an immigration attorney.

 

[1] MSAs are geographic entities defined by the U.S. Office of Management and Budget for use by Federal statistical agencies in collecting, tabulating, and publishing Federal statistics. More information on MSAs can be found at the U.S. Census Bureau at http://www.census.gov/population/www/estimates/metroarea.html

Categories Compliance Department of Labor News & Updates USCIS

Federal Court Sets Aside the DOL Wage Increase and the DHS H-1B Restrictions Rules

Yesterday, December 1, 2020, a federal judge in California issued an order setting aside two new rules from the Department of Labor and Department of Homeland Security, respectively. The first rule from the Department of Labor had gone into effect immediately and dramatically increased the prevailing wages that were required for H-1B and PERM applications. That rule has been set aside by the court as having improperly bypassed the normal notice and comment period required under federal law. It will likely take the Department of Labor a few days to revert back to the lower prevailing wage requirements. It is unclear as to whether the government will appeal this decision, but we do anticipate that even if there is an appeal that the rule will not be in effect while an appeal works its way through the court system. This was a widely expected outcome and will be welcome news to employers and employees alike.

The second rule from the Department of Homeland Security was set to go into effect next week, and it was also set aside by the federal judge in California. The rule would have enacted new restrictions and requirements around H-1B petitions. This outcome was also widely expected and is good news for employers who use the H-1B program.

Please reach out to your Graham Adair attorney if you have any questions and we will continue to provide updates as they become available on this situation.

Categories Compliance News & Updates USCIS

I-9 Update: I-797 Approvals Can Be Accepted in Lieu of EAD Cards

Citing COVID-19, USCIS has been experiencing significant delays in issuing EAD cards. USCIS has therefore announced that I-797 approvals with a notice of action date from December 1, 2019 to August 20, 2020 are acceptable as documentation to satisfy work eligibility for I-9 purposes.

 

Employers should note that I-797 approvals can only be used to satisfy work eligibility, and not identity. If an I-797 approval is used for work eligibility, the employee must also present a List B document to prove identity. By December 1, 2020, employers must re-verify any employee who presented an I-797 approval.

 

We will continue to provide updates on changes to the I-9 process due to the pandemic. In the meantime, please contact your Graham Adair attorney with any questions.