Categories Compliance Department of Labor Department of State News & Updates USCIS

2022 Immigration Summary and a Look Ahead to 2023

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.

 

  1. 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

 

  1. 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.

 

  1. 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.

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 Department of Labor News & Updates

PERM Modernization Project to Improve Case Processing

Authorized by the Modernizing Government Technology Act of 2017, the Technology Modernization Fund (TMF) is an investment program that aims to update government  services in order to enhance customer service, cybersecurity, and governmental entities. The Fund plans on doing this by decreasing the amount of independent data systems used and by transferring all paper files into one system. This will ensure that data can be more easily found, and documents are less likely to be lost.

 

Last month, the TMF announced an $7.2 million investment into the Department of Labor’s PERM Labor Certification system. PERM is the system in place for getting a Labor Certification. It is often the first step for a foreign national to receive an employment-based immigrant visa. The current PERM system has been used for twenty years.

 

TMF’s PERM Visa Modernization project will create a more secure and efficient way of sharing data and will make it faster and cheaper for employers to access services. The faster process will also help foreign nationals to continue work in the United States as they will not have to wait on system delays. This investment will dramatically change the process for PERM filers to submit applications and for PERM analysts to review applications.

 

With the TMF investment, standardized and secure data will be shared and provided throughout the entire immigration process and throughout the process of applications. It will also improve border flow, capacity management, and give decision makers the tools needed to increase flow and timeliness. TMF would streamline modernization and significantly improve immigration processes.

 

To learn more about TMF, visit tmf.cio.gov

Categories Department of Labor Department of State News & Updates USCIS

EB-3 Downgrade I-140 Petitions Guidance

Each month the State Department publishes the Visa Bulletin, which summarizes the availability of immigrant numbers for a particular month. You can track your priority date and your corresponding immigration preference category, and once your priority date is current you can apply to adjust status to permanent resident, which is the last step in the green card process.

Your priority date is the date of filing the Labor Certification. If your I-140 Immigrant Petition for Alien Worker does not require an approved Labor Certification, the priority date is the date of filing the I-140 petition.

The three common employment-based immigration preference categories are as follows:

  • EB-1
    • Individuals with Extraordinary Ability – can self-petition
    • Outstanding Researchers and Professors
    • Multinational managers or executives
  • EB-2
    • National Interest Waiver for individuals with advanced degrees or with exceptional ability – can self-petition
    • Members of professions that require an advanced degree or individuals with exceptional ability in the sciences, arts, or business
  • EB-3
    • A skilled worker (meaning your job requires a minimum of 2 years training or work experience)
    • A professional (meaning your job requires at least a U.S. bachelor’s degree or a foreign equivalent and you are a member of the profession)

In 2015, the State Department began to post two charts on the Visa Bulletin,

  • Final Action Dates (dates when visas may finally be issued); and
  • Dates for Filing (earliest dates when applicants may be able to apply).

After the Visa Bulletin is published each month, USCIS designates which chart to use. When USCIS determines there are immigrant visas available for the filing of additional adjustment of status applications, the Dates for Filing chart may be used to determine when to file an adjustment of status application with USCIS. Otherwise, the Final Action Dates chart must be used to determine when to file an adjustment of status application with USCIS.

If a foreign national has an I-140 approval in the EB2 preference category, it can be advantageous to “downgrade,” or file a second I-140 petition in the EB3 preference category, depending on visa bulletin movement. For example, due to the pandemic, an unprecedented low number of family-based (FB) immigrant visas were issued in fiscal year (FY) 2020, and those unused family-based numbers were added to FY 2021’S employment-based immigrant visa allocation.

This reallocation resulted in rapid advancement in the final action dates and dates for filing of all of the EB categories that were not current, particularly EB3 India and EB3 China. The 2020 October Visa Bulletin presented an unprecedented opportunity for clients who had been waiting years to file adjustment of status applications to finally be able to do so.

The risk of filing an EB-3 downgrade I-140 petition are quite low. When filing an EB-3 I-140 downgrade petition, the PERM Labor Certification from the approved EB-2 I-140 petition will be submitted to USCIS. Practically every PERM that qualifies for the EB2 preference category will qualify for the EB3 preference category. Absent a PERM job opportunity that is no longer valid, or fraud or willful misrepresentation, EB3 I-140 petitions should be successful.

Downgrading from EB2 to EB3 does not create any issues, it actually gives you more options should either category move more favorably than the other. If you choose to file an EB-3 downgrade I-140 petition, your EB-2 approval will remain valid. Once the EB-3 I-140 is approved, you will have two I-140 approvals with the same priority date, one in each category and you can use whichever one will be faster to adjust status when the Final Action Date becomes current. If the EB3 category retrogresses and the EB2 category improves, then you can submit an interfiling request to USCIS, or a request asking that your EB2 I-140 approval be interfiled with your pending I-485 application.

Even if your priority date is only current according to the Dates for Filing chart, it can still prove advantageous to file an EB3 downgrade I-140 petition if it will allow you to apply to adjust status sooner. The Dates for Filing option for the green card process permits applicants to obtain interim benefits, including work authorization and travel documents, and allows them to accept a position with a new employer at an earlier stage in the process:

  • Additional work authorization and travel documents: An individual who submits an application for adjustment of status application can concurrently request an employment authorization document (EAD) and advance parole (AP) travel document, which provides the applicant with additional flexibility in employment and international travel.
  • Work authorization for spouses: Family members can submit an application for adjustment of status and request EAD and AP documents for themselves.
  • Increased worker mobility to new employment: Once the adjustment of status application has been pending for six months, the individual is no longer tied to the sponsoring employer and becomes mobile in the labor market. After six months, most adjustment of status applicants can change employers as long as the new position is “same or similar” to the position for which the green card application was filed.

If you are in H-1B status, you can continue to maintain your H-1B status while the I-485 is pending. We recommend maintaining your H-1B status while the I-485 is pending, in the unlikely event that something happens to your I-485. This is unlikely, but it is a good idea to maintain your H-1B status just in case.

In summary, filing an EB-3 downgrade I-140 petition can be of significant benefit to applicants born in China and India who are subject to the longest priority date backlogs. With an EB-3 I-downgrade I-140 petition, foreign nationals from China and India may be able to file the green card application sooner than anticipated.

As always, we are here to help.  If you would like to reach out you can email us at info@grahamadair.com or call us at (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