covid immigration law
Categories Department of State News & Updates USCIS

Is Your Company Revamping Immigration?

The State Department previously announced that the pandemic-induced lull in legal immigration to the U.S. is over. During the 12 months that ended on September 30, some 493,000 visas were issued to foreign nationals looking to work and live in this country permanently.

Where does your company stand in all of this? With heavy-handed COVID restrictions mostly removed, which weighs against a flat economy, is your company now revamping its business immigration policies? If so, it is going to be a complicated space for the foreseeable future. For these reasons, it would be wise to work with an experienced business immigration attorney or law firm that can help keep things moving along.

Consulates Are Open, People Are Traveling

Fiscal year 2019 saw an impressive number of visas issued by the State Department. Then COVID hit and the world shut down. Consulates were closed up and travel restrictions put in place. That put a huge damper on legal immigration. But now that consulates are open and people are traveling again, the numbers are back up.

The previously mentioned 493,000 visas represent a 73% increase from 2021 and 7% over 2020. Either way you look at it, legal immigration is working to get back on track. This is good in the sense that companies once again have access to foreign nationals looking to the United States for work. Companies can access that foreign talent pool much easier now that travel restrictions have eased.

The one thing that does not change is how visas are actually processed. There is still paperwork to complete; there are still deadlines to pay attention to; there are still T’s to be crossed and I’s to be dotted.

Many Ways to Get Workers Here

There are quite a number of different ways to get workers to the U.S. We deal a lot with the H-1B visa here at Graham Adair. These are mainly visas for temporary employment. But there are other options, including business visas, work visas, training visas, and exchange visitor visas.

Working with an experienced immigration attorney offers the advantage of being able to select the most appropriate visa program without having to possess the knowledge yourself. Tell us what your company’s needs are, and we can advise you as to the most appropriate way to sponsor people with the right skills and experience. Then we can work with you to facilitate the process from start to finish.

Transitioning from Temporary Visa to Green Card

We can also assist foreign national workers with the transition from a temporary visa status to green card, or permanent residency. A green card gives a foreign national permanent residency status. After a certain amount of time, a person with a valid green card can apply for U.S. citizenship. Once again, we can help.

At every step of the way, the paperwork needs to be completed the right way. Making mistakes delays the process and can even result in denials or other impacts to an individual’s immigration status. And given how strict the State Department is with some types of visas, delays can easily disrupt a company’s need to onboard a foreign national employee. It can even jeopardize a worker’s chances of being approved.

Graham Adair immigration attorneys are paperwork experts. Our attorneys know how to complete government forms in such a way as to give the State Department and U.S. Citizenship and Immigration Services exactly what it’s looking for. We make sure all required information is submitted so that processing is swift. We also ensure that our clients fully understand compliance and enforcement issues.

It is encouraging to know that immigration has opened back up now that the largest impacts of COVID have been pulled back. However, considering the struggling economy, many companies are taking a step back to re-evaluate their immigration policies. We can help by way of expert legal advice and assistance for you and your foreign workers.

 

Categories News & Updates USCIS

USCIS Proposed Fee Increases

USCIS proposed a fee increase for certain immigration services, including applications for naturalization and certain types of visas. The proposed fee increase would affect a wide range of individuals, including those seeking to become naturalized citizens, as well as those applying for nonimmigrant visas such as H-1B, L-1, and E-2 visas. The proposed fee increase would also apply to individuals seeking employment authorization documents and those seeking to renew their green cards.

The text of the proposed rule is now available and is noted at the bottom of this article. There is a variable fee for Form I-129 depending on the type of status sought, such as H-1B, L-1, TN, etc. The I-129 fee increase ranges between 70% – 201%. The current I-129 fee is $460.

According to the USCIS, the proposed fee increase is necessary to “ensure the agency has the resources it needs to maintain processing times, reduce backlogs, and improve its services.” The agency claims that it has not raised fees for many of its services in over a decade and that the proposed increase is necessary to keep pace with the rising costs of providing immigration services.

However, the proposed fee increase has faced widespread opposition from immigrant advocacy groups and some members of Congress. Critics argue that the fee increase would place an undue burden on immigrants and could discourage people from seeking legal immigration status. They also argue that the fee increase is unnecessary, as the USCIS already generates sufficient revenue through fees to cover its costs.

At this time, it is unclear when or if the proposed fee increase will take effect. The USCIS is required to allow for a period of public comment before implementing any changes to its fees. It is possible that the agency will make changes to the proposed fee increase based on the feedback it receives during this period.

In conclusion, the proposed fee increase from the USCIS has generated significant controversy and opposition. While the agency argues that the increase is necessary to maintain its operations, critics argue that it would place an undue burden on immigrants and is unnecessary given the agency’s current fee structure. Procedural rules require that the proposal go through a formal notice-and-comment period that will likely last 60 days, during which time any member of the public may submit feedback.

Here is a link to the proposed rule: https://lnkd.in/eQSvXPGY

Categories Department of State News & Updates USCIS Visa Bulletin

Will Congress Reduce Green Card Backlogs?

On December 7, 2022, the House of Representatives was scheduled to vote on H.R. 3648, the Equal Access to Green Cards for Legal Employment (EAGLE) Act, but the vote has reportedly been pushed into next week. The EAGLE Act proposes a number of changes to the employment-based immigration system in an effort to alleviate the immigrant visa backlog, including eliminating the “per country” limitation on employment-based immigrant visas, or green cards, over a nine-year transition period. This will be particularly beneficial to green card applicants born in China and India who are subject to the longest employment-based immigrant visa backlogs.

 

The Act also aims to permit foreign nationals who have been waiting in the immigrant visa backlog for two years to file green card applications and reserve a certain amount of green cards for nurses and physical therapists.

 

A number of immigration advocacy groups have also come out in support of the EAGLE Act since it was first introduced last year. Earlier this week, the White House issued a statement in support of passage of the EAGLE Act. In a statement released by the Executive Office of the President, Office of Management & Budget, the Administration confirmed that it “supports House passage of H.R. 3648, the Equal Access to Green Cards for Legal Employment (EAGLE) Act, and its goal of allowing U.S. employers to focus on hiring immigrants based on merit, not their birthplace, by eliminating the “per country” limitation on employment-based immigrant visas (green cards).”

 

However, some advocacy groups feel that eliminating per-country limitations could negatively impact countries that have not historically experienced long waits for the green card. In an email newsletter this week, ILW.com opposed H.R. 3748, noting that passage of the law would increase the green card wait time for countries other than India and China by about 15 years and adversely impact the EB5 Immigrant Investor Program. The American Immigration Lawyers Association has also spoken out against H.R. 3748 stating that, “the EAGLE Act does not strike the right balance of eliminating per-country limitations without adversely impacting others. Therefore, AILA does not support the bill’s passage and urges Congress to find an equitable solution for all individuals waiting for lawful permanent residence.”

 

Graham Adair is monitoring the situation closely and will provide an update should the EAGLE Act be put to a vote next week. 

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 News & Updates USCIS

What happens to spouses and children when a foreign national employee loses status?

With the uncertainty of life, it is important to know what steps to take if a principal visa applicant is terminated, passes away, or divorces a dependent spouse. There are a lot of materials on what the employee can or should do, but often overlooked are dependent spouses and children. What can they do to protect themselves?

 

What happens when the principal spouse is terminated

 

8 C.F.R. § 214.1(l)(2) provides a 60-day discretionary grace period (you must have a valid I-94 for the duration of the grace period) upon termination of employment (last day of employment) for those admitted in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 or TN classification and their dependents. The grace period can only be used “once during each authorized validity period”, meaning once per H-1B approval. During the grace period, the principal has the following options:

 

  1. Transfer

 

If the principal is in H-1B 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. If the H-1B status is transferred, dependents can remain in the U.S. pursuant to their H-4 status. Dependents working on an H-4 EAD, can remain working on the same EAD as well.

 

  1. Change to another status

 

The principal spouse can 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, J-1, or some other work status. We recommend applying for the change of status as soon as possible after learning of the termination.

 

  1. Depart the U.S.

 

If the principal spouse is terminated by their employer and chooses to depart the U.S. and is in H-1B, H-1B1, or E-3 status, the employer must offer to pay for the cost of reasonable transportation to the last country of residence. However, the employer is not required to pay the transportation costs for dependents. So spouses and children may find themselves in a situation where the costs of their return trip are not covered by the employer.

 

What happens when a principal and dependent spouse divorce, and what happens to their children?

 

If a principal nonimmigrant visa holder divorces his dependent spouse, the dependent spouse will be out of status once the divorce is finalized. Therefore, a dependent spouse would either need to seek an alternative status to legally remain in the U.S. before the divorce is finalized. Otherwise, he or she would have to depart the United States. The principal and dependent spouse’s children would still have valid derivative status in connection with the principal employee unless the he or she does not custody rights over the children.

 

What happens to dependents when a principal spouse passes away?

 

If the principal spouse passes away, the dependents may be eligible for relief based on Section INA 204(I) – Relief for Surviving Relatives. They may be eligible to seek relief if they are a:

 

  • Principal or derivative beneficiary of Form I-130, Petition for Alien Relative (regardless of whether the petitioner was a U.S. citizen or lawful permanent resident), and the petitioner died;

 

  • Derivative beneficiary of Form I-130, Petition for Alien Relative (regardless of whether the petitioner was a U.S. citizen or lawful permanent resident), and the principal beneficiary died;

 

  • Derivative beneficiary of Form I-140, Immigrant Petition for Alien Worker, and the principal beneficiary died;

 

  • Beneficiary of a pending Form I-730, Refugee/Asylee Relative Petition, and the petitioner died;

 

  • T or U nonimmigrant visa holder in a derivative classification (T-2, T-3, T-4, T-5, U-2, U-3, U-4, U-5) and the principal (T-1 or U-1) visa holder died;

 

  • Derivative asylee (AS-2 or AS-3) and the principal asylee (AS-1) died.

 

  • Derivative asylee (AS-2 or AS-3) and the principal asylee (AS-1) died;

 

  • Derivative beneficiary for VAWA classification (Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant) and the VAWA self-petitioner died;

 

  • Derivative beneficiary of Form I-485, Application to Register Permanent Residence or Adjust Status, filed by a battered spouse or child under the Cuban Adjustment Act or the Haitian Refugee Immigrant Fairness Act on and the principal applicant dies; or

 

  • Conditional permanent resident (CPR) child of a CPR filing a waiver of the joint filing requirement for Form I-751, Petition to Remove Conditions on Residence, based on battery or extreme cruelty, and the CPR dies.

 

To be eligible for relief under INA 204(l), at least one beneficiary must have been residing in the United States when the qualifying relative died, and the same beneficiary must continue to reside in the United States at the time of seeking relief. The Department of Homeland Security (DHS) may decline to provide relief if it determines, in its discretion, that doing so would not be in the public interest.

 

If none of the above apply, then the dependent spouse will fall out of status as soon as the principal spouse passes away. The dependents can attempt to remain in the U.S. by seeking alternative legal status; if not then they must depart the country. Remaining in the U.S. would make the dependents unlawfully present. Accruing more than 180 days of unlawful presence, but less than 365 days will result in a bar from reentering the U.S. for three years. Accruing more than 365 days of unlawful presence will result in a bar from reentering the U.S. for ten years.

 

Losing a job, losing a spouse, and divorce are significant life events that can take a heavy toll. It can be difficult to think about anything else in such times. For these reasons, while these situations are relatively rare it is best to know ahead of such a difficult event.

 

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