Categories Department of State Immigration and Customs Enforcement News & Updates

Current COVID-related Guidance on Travel to and From the United States

With the constantly changing landscape around COVID-related travel restrictions, is it important to find updated information prior to any international travel. As of right now, our current guidance is as follows:

Before Departing the U.S.

It is recommended to be fully aware of the COVID-19 requirements at your destination as they may differ from U.S. requirements. You can find country-specific guidance on the CDC website. Failing to follow your destination’s requirements can result in denial of entry.

Per CDC guidance, you should refrain from traveling if you have COVID-19 symptoms, you tested positive for COVID-19, you are waiting for results of a COVID-19 test or you had close contact with a person with COVID-19 and are recommended to quarantine.

Vaccination Requirements to Enter the U.S.

As of June 12, 2022, the CDC is no longer requiring air passengers traveling from a foreign country into the U.S. to show a negative COVID-19 test or documentation of recovery from COVID-19.

U.S. citizens, Legal Permanent Residents and Nonimmigrants flying into the U.S. will be required to provide contact information to their airline before boarding a flight to the United States.

Nonimmigrants entering the U.S. through air, land or ferry must be fully vaccinated, with limited exceptions. A person is considered fully vaccinated:

  • 2 week (14 days) after an accepted single-dose vaccine
  • 2 weeks (14 days) after second-dose of an accepted 2-dose vaccine
  • 2 weeks (14 days) after receiving the full series of an accepted COVID-19 vaccine in a clinical trial
  • 2 weeks (14 days) after receiving 2 doses of any “mix and match” combination of accepted COVID-19 vaccines administered at least 17 days apart

Accepted COVID-19 vaccines include the following:

  • Single dose: Janssen/J&J and Convidecia (CanSinoBIO)
  • 2-dose series: Comirnaty (Pfizer-BioNTech); Spikevax (Moderna); Vaxzevria (AstraZeneca); Covaxin; Covishield; BIBP/Sinopharm; CoronaVac (Sinovac); Nuvaxovid (Novavax); Covovax; and Medicago (clinical trial vaccine)

Accepted proof of COVID-19 vaccination must have personal identifiers (full name plus another identifier such as date of birth or passport number), name the official source who issued the record and list the vaccine manufacturer and date(s) of vaccination. Accepted proof of COVID-19 vaccination includes the following:

  • Verifiable records (digital or paper): vaccination certificate with QR code or digital pass via Smartphone application with QR code
  • Non-verifiable paper records: printout of COVID-19 vaccination record or COVID-19 vaccination certificate issued at a national or subnational level or by an authorized vaccine provider
  • Non-verifiable digital records: Digital photos of vaccination card or record, downloaded vaccine record or vaccination certificate from official source

In order to expedite the inspection process, the Department of Homeland Security is encouraging travelers arriving or departing the U.S. to use Simplified Arrival or Mobile Passport Control, which can make the inspection process touchless and more expedient with the use of facial comparison technology.

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

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Categories News & Updates

H-1B Basics: What You Should Know About the Popular Work Visa

The H-1B visa is a work visa that allows foreign nationals with certain skill sets to live and work in the U.S. H-1B is considered a dual-intent status, which enables H-1B visa holders to pursue permanent residency (green card). It is one of the more popular visas in use today. But as is the case with all things immigration related, obtaining and keeping an H-1B can be complicated.

As a law firm specializing in immigration law, we understand the H-1B visa intimately. We can provide you with a qualified H-1B visa attorney more than capable of helping work through your employee’s case in a timely manner. In the meantime, here are the basics of the H-1B visa:

Limited Availability

The H-1B visa program is not open-ended in the sense that anyone can apply at any time. By law, the U.S. Citizenship and Immigration Service (USCIS) can only approve 85,000 new H-1B visas annually. For all practical purposes, employees need to be sponsored by a U.S.-based employer that will file the H-1B visa petition on his or her behalf.

The law favors foreign nationals with advanced degrees from U.S. institutions. However, employees may be eligible to apply for an H-1B visa they have a bachelor’s degree in the field of endeavor. Also note that the H-1B limit does not apply to educational institutions, government research organizations, and nonprofits affiliated with institutions of higher education. Such organizations can sponsor employees for H-1B visas at any time.

Eligibility Requirements

In order to be eligible for the visa, employees must hold at least a bachelor’s degree. They must also be offered what is considered a specialty occupation by a U.S. employer, and their degree must align with the job duties for the position being sponsored.

There are a number of criteria by which an employer can classify an open position as a specialty occupation. Applicable criteria may include things like specialized training and job requirements that dictate both formal training and real-world experience. Needless to say, there are various ways to meet the specialty occupation threshold.

Applying for the Visa

The H-1B visa program works on a lottery basis. Employees hoping to work for an employer that is not exempt from the H-1B limit, will need to be registered with USCIS’s new online lottery system. This typically happens in March every year. If selected, employers will then need to complete and submit the required paperwork.

Once the required petition is prepared and filed, it will take USCIS several months to adjudicate. USCIS may require additional information, in which case they will issue a Request for Evidence (RFE). The RFE must be addressed adequately in order to achieve an approval for the employee. The RFE will also likely indicate potential weaknesses in the case. It is helpful to have an experienced immigration attorney involved to improve the likelihood of an approval.

Employers also typically have the option to file H-1B petitions with premium processing. It requires an additional government fee of $2500, but will more the case to adjudication much faster than cases filed with normal processing. In many instances, cases filed with premium processing may be approved in about two weeks instead of several months. This can be especially helpful for F-1 students whose status is expiring soon, as well as those who are changing to H-1B from another status, such as L-1.

Complicated, But Not Impossible

After reading the basics of the H-1B visa process, one may be left thinking that it is too complicated. This happens a lot with companies that have not filed an H-1B petition previously. We encourage such companies to schedule a call with us. We can demystify the process and help companies work through a cost/benefit analysis to determine if H-1B visa sponsorship is right for their employee or job candidate. Obtaining an H-1B visa is complicated, but it is very achievable. We encourage companies to work with an experienced immigration attorney from day one of the process, not only to file a strong case but also to explain the company’s obligations and help it avoid liability.

A skilled H-1B attorney can help companies navigate all the requirements. They can answer questions while providing companies with sound advice.

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Categories News & Updates

Know Your Non-Immigrant Status Before Applying for an SSN

Despite what you may have heard, some non-citizens working in the U.S. still have tax obligations. In order to meet those obligations, a social security number (SSN) is required. Obtaining one can be complicated if the worker in question holds a non-immigrant visa status.

Immigration law classifies non-immigrant workers according to various occupational categories. Non-citizen social security applicants need to be aware of these classifications in order to complete their paperwork correctly. Getting any portion of the application wrong – including worker classification – only delays the approval process. Furthermore, delays create additional tax issues that can ultimately turn into a nightmare.

More Than 20 Classifications

The importance of knowing your non-immigrant status is critically important when you understand that there are more than twenty classifications. Perhaps the most well-known classification is H-1B. This applies to workers in specialty occupations who are sponsored by their employers. Those in H-1B status will need to have their job classified according to the appropriate government occupation.

Here are some of the other common classifications:

  • L-1 – Intracompany transfer employees
  • TN – Trade NAFTA workers from Canada and Mexico
  • H-2B – Temporary non-agricultural workers
  • O-1 – Foreign nationals considered to have “extraordinary ability”
  • E-1/E-2 – International investors

It is important to know that only a few non-immigrant classifications allow workers to live and work in the U.S. without the previous involvement of the employer. In most cases, employers need to at least file a petition to obtain USCIS authorization before employment can officially begin.

Starting employment before meeting all your legal obligations could result in a loss of your status to legally live and work here. The employer sponsoring your employment can guide you through the process of obtaining the correct permission, which is typically done through a law firm that supports their employees’ immigration needs. But if not, do not take any chances. Don’t just assume you can start working on the day you arrive on American soil.

Filing for an SSN

Non-immigrant workers with tax obligations can file for an SSN with the Social Security Administration. Details can be found on their website. Workers can do this independently or with the help of their employer sponsors. At any rate, obtaining an SSN obliges both workers and their employers to file the appropriate paperwork during the annual tax season.

For help filing taxes, you should seek the assistance of a tax professional. You will need to know your non-immigrant status in order to give the tax preparer the correct information. It is never advisable for you to attempt to do your own taxes. There are some mistakes that could impact your future U.S. immigration process.

If you are an employer looking to hire temporary non-immigrant workers, it is imperative that you know and understand how tax laws apply to your situation. With the current political environment such as it is, your company cannot afford to run afoul of tax laws. Know what your obligations are and make sure that you meet them.

Get the Help of an Attorney

U.S. immigration law is incredibly complex. Even something as simple as applying for a social security number can create headaches for both workers and their sponsor employers. We always recommend utilizing the services of an experienced immigration attorney regardless of how minor a task non-immigrant workers are trying to accomplish.

Immigration attorneys specialize in immigration law. Immigration is our specialty here at Graham Adair. We excel in all phases of the immigration process, including non-immigrant classification and obtaining worker visas. If you need assistance obtaining permission to live and work in the United States, feel free to contact us to arrange for a consultation.