Categories News & Updates USCIS

USCIS Has Reached FY 2023 H-1B Cap

USCIS announced this week that it has received a sufficient number of H-1B petitions needed to reach the 85,000 H-1B visa cap for fiscal year (FY) 2023, which begins October 1. This announcement means that USCIS will not run a second H-1B cap lottery this year.

USCIS has updated the H-1B cap online system, and the status of the remaining registrants’ online accounts has changed from “Submitted” to “Not Selected.”

USCIS will continue to accept and process petitions that are otherwise exempt from the cap. These include H-1B extensions, amendments, changes of employer, and concurrent employment for existing H-1B workers.

If you have any questions about this announcement, please contact your Graham Adair representative or email info@grahamadair.com.

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.

US Naturalization N 400
Categories News & Updates

U.S. Naturalization: The N-400 Interview and Exam

As business immigration attorneys, we do a lot of work for companies looking to sponsor foreign workers. We represent those workers as they seek to get work visas and green cards. But a full picture of employment-based immigration law would be incomplete without naturalization. Naturalization is often the endgame for workers who come to the United States. 

Our immigration attorneys are naturalization experts. We offer a variety of naturalization services, including assistance in completing the N-400 form and preparing for the naturalization interview and exam.

If your business employs foreign workers who have decided to become U.S. citizens, you can help them in that endeavor by taking advantage of our naturalization services. Anything you can do to help your employees realize their dreams of U.S. citizenship will be much appreciated by them. Most employers require employees to pay naturalization costs out of pocket, but simply having an established relationship with a strong immigration firm is very valuable. 

The N-400 Form

As with anything related to the U.S. government, becoming a naturalized citizen starts with filling out a form. The form is known as N-400. Its purpose is to verify an applicant’s eligibility for naturalization. In addition, the form collects all the personal information required for approval.

In order for your workers to complete and submit the form, they must be at least 18 years old on the date they apply for naturalization. Assuming they received their green card based on employment, they must have held their green card for at least five years.

The Interview and Test

U.S. immigration law requires that any foreign national wishing to become a U.S. citizen must undergo an interview and test with a U.S. Customs and Immigration Service (USCIS) officer. The good news is that the interview and test take place at the same time.

The interview portion is designed to verify the information contained on the applicant’s N-400 form. It is an opportunity for the officer to ask questions that may clear up any confusion. It is also an opportunity for the applicant to more fully introduce themselves and speak to the information they provided in their application.

As for the actual N-400 test, it consists of both English and civics sections. The English section is divided into three categories:

  • Speaking – Applicants must demonstrate an ability to communicate in English, at least at a basic level. Speaking and comprehension are assessed through a series of questions that applicants must answer orally.
  • Reading – Applicants must demonstrate their ability to read English by correctly reading aloud at least one of three sentences.
  • Writing – Likewise, applicants must demonstrate the ability to write English by correctly writing out one of three sentences.

The civics portion of the test measures the applicant’s knowledge of U.S. government and history. There are two different tests. The 2008 test is given to applicants who submitted the N-400 form before December 1, 2020, and after March 1, 2021.

Applicants who filed between those two dates can choose between the 2008 and 2020 tests. The 2008 test involves ten questions of which the applicant must answer at least six correctly. The 2020 test involves twenty questions of which twelve must be answered correctly.

Exemptions and Accommodations

Immigration law does allow certain exemptions and accommodations for the N-400 interview and test. For example, if an applicant is at least 50 years old and has continuously and legally resided in the United States for 20 years, they are exempt from the English portion of the test. Likewise, applicants can take the civics portion of the test in their native language as long as they bring an interpreter with them to the interview.

As immigration attorneys, we know all the ins and outs of the naturalization process. We would be happy to assist you or your employees as they seek to become U.S. citizens. Please contact us at: 408 715 7067; or info@grahamadair.com.

Farm Workers Lawyers
Categories News & Updates

Will the Farm Workforce Modernization Act Pass the Senate?

One of the most important immigration bills put forth by Congress in recent years continues to languish in the Senate. The bill, known as the Farm Workforce Modernization Act (FWMA), will be beneficial to farmers and their H-2A workers should it ever become law. But at the time of this writing, passage was still not guaranteed.

Though the House has passed various versions of the bill over many years of wrangling, the Senate has not been able to reach a compromise. The main sticking point this time around is expansion of another labor law that would ultimately allow temporary agricultural workers to sue their employers.

As immigration attorneys and experts in immigration law, we have seen this sort of thing before. Whenever Congress sets their minds on changing some aspect of U.S. immigration, congressional leaders must walk that fine line of balancing the interests of workers against those of their employers. The current wrangling over FWMA is no exception.

What the Bill Would Accomplish

The main thrust of FWMA is allowing farmers to hire their H-2A workers permanently. As the law currently stands, H-2A workers are temporary workers only. Such workers make up the vast majority of the ranks of migrant workers who travel the country following growing seasons.

As the thinking goes, passage of the bill would benefit farmers by giving them access to a greater pool of permanent workers. They would not have to worry about recruiting and hiring on a seasonal basis. Likewise, it would benefit workers by offering considerably more stability than they currently enjoy.

Proponents of the bill say it could potentially lower food prices by inviting more foreign agricultural workers to apply for the H-2A visa. A larger labor pool would help farmers produce more, thereby bringing prices down.

Why Some Senators Are Resisting

On its face, the FWMA seems like a bill that should pass quickly. So why are some Senators resisting? It goes back to the fear of lawsuits.

Existing legislation known as the Migrant and Seasonal Agriculture Workers Protections Act (MSPA) already protects the rights of agricultural workers to some degree. The law even allows such workers to sue their employers if they believe labor laws have been broken. But when the MSPA was written, it excluded H-2A workers from the lawsuit provision based on the fact that such workers were deemed temporary.

The FWMA seeks to expand the MSPA in order to allow H-2A workers the same right to sue. A number of agricultural industry groups, particularly in the southeast, are wary of such expansion. They fear that passage of the law would embolden unions to go after farmers with frivolous lawsuits.

Farmers and industry trade groups out West say they are not worried about that sort of thing. Many of them utilize a mixture of domestic and H-2A workers, meaning their operations are already subject to the MSPA’s lawsuit provision. They say they do not really have issues because they take care of their workers.

It’s Up to the Senate Now

The fate of the FWMA rests squarely in the hands of the Senate. It is up to them now, and time is running out. If the bill does not pass prior to the November elections, it’s not likely to get done this year. Furthermore, it is quite possible that both the House and Senate will change hands in 2023.

Immigration law is a complicated thing. But the politics behind changing the law are even more complicated. That’s why we practice immigration law. We make the complex simple by offering expert representation in business immigration and other related areas.

Please contact us with any questions or inquiries: 408 715 7067; info@grahamadair.com.

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