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.

Categories Department of State News & Updates

Holiday Season Travel and Visa Application Guide

Some of our most frequently asked questions are about visa appointments. With the holiday season coming up, we are sure you have a bunch of questions about visa appointments, wait times, dependent visa appointments, documents to take to the interview and more. Below is some important information and a compilation of some helpful resources for you to navigate the simple yet complicated visa process.

 

  • Do I need a Visa?

 

Unless you are a citizen of Canada, yes, you need a valid U.S. visa in order to enter the United States. A visa is different from the I-94 document that is provided at the time of your entry stating your authorized period of stay. For more information on the differences between Visa, I-94 and I-797, please see our article here https://grahamadair.com/when-does-your-immigration-status-expire-how-to-interpret-i-94-i-797-and-visa-documents/. If your visa has expired and you need to travel internationally, you will need to plan on applying for a new visa at a U.S. consular post.

 

  • I have a valid visa in my old passport- Can I travel if I have a valid visa in an expired old passport?

 

Yes, you can travel as long as the visa is valid and not damaged. You must carry both the old and new passports while traveling to the U.S.

 

  • Are there vaccination requirements for travel to the United States?

 

Yes, if you are a nonimmigrant traveling to the United States, you will need to show proof of being fully vaccinated against COVID-19 before you travel by air to the United States from a foreign country.

 

  • B-1/B-2 appointment availability

 

Routine in-person B1/B2 visas appointments have been resumed in most countries including India, starting in September 2022. Appointments for 2022 and 2023 filled quickly, but the Consulates continue to open appointments as capacity allows.

 

  • How do I schedule a visa appointment?

 

Step 1:  Complete the DS-160, Online Nonimmigrant Visa Application.

 

Here is a link to the Frequently Asked Questions for instructions about using the DS-160. You can access the online DS-160 by clicking: Consular Electronic Application Center website.

 

Step 2: After you have completed the DS-160, you must print and keep the DS-160 barcode page. (You will not need to print the full application.)

 

Step 3: You must schedule a visa interview appointment. Visit the U.S. Embassy or Consulate website where you will be interviewed, for country-specific instructions.

 

Step 4: Pay the visa application processing fee. Review country-specific instructions on the U.S. Embassy or Consulate website.

 

Do I qualify for an expedited appointment?

If there is an urgent, unforeseen situation such as a funeral, medical emergency, school start date or the like, and you submit proof of the same, consular sections will determine on a case-to-case basis and expedite the interview date. Expedited requests can be submitted only after you schedule a visa appointment.

 

Note: Please consult an experienced immigration attorney and see if you have a viable case for expedited appointment.

 

For Indian Nationals, here is the link to schedule a visa appointment – https://www.ustraveldocs.com/in/en

 

  • What documents do I need to carry for the visa appointment?

 

Generally, the following routine documents are needed for a dropbox interview for temporary worker visa (H-1B; L-1; E-3; H-1B1 etc):

 

  1. Visa Appointment confirmation letter
  2. DS-160 Confirmation
  3. Employment Verification Letter [Should include your job title, number of hours of employment per week, salary, and a brief outline of your current job duties on company letterhead]
  4. 2 Photographs as per the consulate specifications
  5. Latest I-797 and the one prior to that.
  6. Passport

 

NOTE: Please refer to the U.S. travel docs for your country and see the list of documents required by the U.S. Consulate.

 

  • Do my dependents need their own visa appointment?

 

No, if they are going to accompany you during your appointment. But you must fill out the dependent section of the DS-160 Application and pay the required fee for each dependent before they can attend the interview with you.

 

  • What should I expect after the visa appointment?

 

The two possible outcomes after a visa appointment are ‘issued’ or ‘refused’. However, even after a visa is refused, a consular officer may determine that additional information from sources other than the applicant may help establish an applicant’s eligibility for a visa.  In such cases, refused visa applications warrant further administrative processing.  Upon completion of the case-specific administrative processing, the consular officer might conclude that an applicant is now qualified for the visa for which he or she applied. Alternatively, the officer may conclude that the applicant remains ineligible for a visa.

 

  • What is 221(g) visa refusal?

 

When an applicant is refused under 221(g), it means the consular officer determined that the applicant was not eligible for a visa after completing and executing the visa application and any required interview. When a consular officer refuses a case under 221(g), the officer will convey to the applicant whether the applicant is required to provide any further documentation or information, or whether the case requires additional administrative processing.

 

It is possible that a consular officer will reconsider a visa application refused under 221(g) later, based on additional information or upon the resolution of administrative processing, and determine that the applicant is eligible.

 

 

 

Additional links and resources:

 

Visa Appointment Wait Times- https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/wait-times.html

 

U.S Visa (India) FAQs- https://in.usembassy.gov/visas/frequently-asked-questions/

 

U.S. Visa FAQs- https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/frequently-asked-questions.html

 

CGI Federal- https://cgifederal.secure.force.com/

Categories Compliance Department of State News & Updates USCIS

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

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

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

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

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

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

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

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

Categories Compliance Department of Labor News & Updates

PERM Recruitment Impacted by Equal Pay Transparency Laws

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

 

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

 

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

 

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

 

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

 

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

Categories News & Updates USCIS

Accrediting Council for Independent Colleges & Schools (ACICS) is no longer a recognized Accrediting Agency. How does this impact Immigration status?

Effective August 19, 2022, Accrediting Council for Independent Colleges & Schools (ACICS) is no longer an Accrediting Agency. This loss of recognition may affect certain students applying for English language study and 24-month STEM OPT extension Programs with degrees from an Institution accredited only by ACICS, H-1B (Cap-Exempt), and I-140 Applicants. If you want to know whether your school is accredited by ACICS, you can look it up here- https://ope.ed.gov/dapip/#/home

The deadline for institutions to seek accreditation with another recognized agency is 18 months from August 19, 2022. However, it is likely that this grace period will be shorter for most students because the “current session” is unlikely to last 18 months. So, if you are an international student at an ACICS accredited institution, you should check with your school’s DSO on how this will impact your immigration benefits. You must check if your school chooses to voluntarily withdraw its SEVP certification or is withdrawn by SEVP. This will not impact those students whose school is able to provide evidence of an ED-recognized accrediting agency or evidence in lieu of accreditation.

English Language Study Programs: If you are a student who filed for a change or reinstatement of status (i.e., filed Form I-539 with USCIS) on or after August 19, 2022, to attend an ACICS-accredited English language study program, you will receive a Request for Evidence (RFE). The student should respond to the RFE by submitting a new form I-20 from an accredited school.

STEM OPT: If you are applying for STEM OPT extension you must have a degree from an institution that is accredited at the time of application. “At the time of application” is the date of the DSO’s recommendation on Form I-20. USCIS will deny the STEM OPT extension if:

  • the STEM degree that is the basis for the STEM OPT extension was obtained from a college or university that was accredited by ACICS; and
  • The student’s DSO recommendation for a STEM OPT extension, as indicated on Form I-20, is dated on or after August 19, 2022.

If the recommendation on I-20 is dated prior to August 19, 2022, you are not affected.

What happens if your STEM OPT extension is denied? You will have 60 days after denial to either depart the United States, transfer to a different school, or to begin a new course of study at an accredited, SEVP-certified school.

H-1B Cap-Exempt Petitions:  Institutions that are no longer recognized by a qualified accreditation agency, or otherwise recognized as pre-accredited, would no longer qualify for an exemption from the H-1B cap or the ACWIA fee.

Impact on I-140 beneficiaries under the advanced degree and professional classifications (EB-2) category: Those who hold degrees conferred after August 19, 2022, by Institutions accredited by ACICIS will also be affected since the ‘advanced degree’ criteria won’t be met.

To conclude, if you are a student in an institution accredited only by ACICS, you must contact your designated DSO to understand the impact on your immigration status.

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