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Thousands of EAD and Green Card documents are not Printed by USCIS

July 20, 2020 Leave a comment

The U.S. Citizenship and Immigration Services recently confirmed that some 50,000 green cards and 75,000 other employment authorization documents (EAD) promised to immigrants have not been produced/printed.  A class action lawsuit has been recently filed with regard to failure to print/produce the EAD cards however there is no current ongoing litigation regarding non-production of green cards. The primary reason cited for non production of these documents is the budgetary constraint.

H-1B Workers – Unintended Remote Worksites/Work From Home; Wage Issues

May 8, 2020 Leave a comment

H-1B Workers – Unintended Remote Worksite/Work From Home

Our March 26, 2020 blog post addressed various issues surrounding COVID-19 and immigration.  Pursuant to that blog post, we are addressing the issue of remote worksites.

Working from Home/Telecommuting: In the current “Shelter-in-Place” or “Stay-at-Home” climate in most states due to COVID-19, it is quite possible that employees are having to work from remote worksites/home and this includes H-1B workers as well.  Per the Dept. of Labor regulations pertaining to H-1B visa holders, H-1B employees are typically allowed to move to a new worksite within the same area of intended employment, i.e. normal commuting distance assuming all other terms and conditions of such H-1B employment remain the same.

In its recent COVID-19 FAQs (Round 1) issued on March 20, 2020, the Dept. of Labor has reiterated/confirmed that if an H-1B employee is simply moving to a new worksite(s) within the area of intended employment, a new LCA is not generally required. Therefore, provided that there are no changes in the terms and conditions of employment that may affect the validity of the existing LCA, employers do not need to file a new LCA. Employers with an approved LCA may move H-1B workers to other worksite(s), which were unintended at the time of filing the LCA or H-1B petition, without having a need to file a new LCA provided that the worksite(s) are within the same area of intended employment covered by the approved LCA.

What is considered the “Area of Intended Employment”: The area of intended employment is the area within normal commuting distance to the place of employment; there is no rigid measure of distance for “normal commuting distance.” Generally, if an H-1B worker normally commutes from his or her place of residence to the worksite(s) on the approved LCA, the worksite(s) will be considered within commuting distance. If the worksite is within a Metropolitan Statistical Area (MSA), any place within the MSA is deemed to be within normal commuting distance, even if it crosses state lines. Accordingly, H-1B workers may be employed at a worksite within an MSA without the employer having to file a new LCA and without the employer relying on the short-term placement provisions (discussed below).

It is important to note that if the move includes a material change in the terms and conditions of employment, the employer may need to file an amended or new petition with USCIS.

Posting (Reposting) the LCA at Home: In case of a move within the area of intended employment, the employer must provide either electronic or hard-copy of the Notice at those worksites(s) for 10 calendar days total, unless direct notice is provided, such as an email notice to all individuals at the new work location.  For an H-1B employee that is going to work from home/telecommute, he/she must post (repost) the LCA at his/her home (or wherever he/she telecommutes from) for ten (10) consecutive days and complete the posting sheet (LCA Notice) that the employer provides. The posting sheet must then be sent to the employer for placement in the Public Access File.  We call it ‘reposting’ because the LCA would have already been posted initially at the intended worksite(s) mentioned on the LCA.  The posting of LCA at home or telecommute worksite now is therefore considered as reposting.

The posting of LCA at home/telecommute worksite must happen as soon as practical and no later than thirty (30) calendar days after the H-1B employee begins work at the new worksite location (in this instance home or telecommute location).  It is our recommendation that H-1B employees take photos of the posting both the first and last days of posting at their home/telecommute location, preferably with a date stamp, as well as indicate the home address to ensure the alternative worksite is within the MSA.

Short-Term Placement Exception:  H-1B employers with an approved LCA may also move H-1B workers to unintended worksite(s) outside of the area(s) of intended employment on the LCA using the short-term placement provisions. The short-term placement provisions only apply to H-1B workers.   Under Short-Term Placement rules, the placement of an H-1B worker at any site that is outside the area of intended employment should not exceed 30 workdays (consecutive or non-consecutive) within a one-year period.  Such placement may be for an additional 30 workdays, but for no more than 60 workdays, in a one-year period, where (a) the employer is able to show that the H-1B nonimmigrant maintains ties to the home worksite (e.g., a dedicated workstation at the permanent worksite; the employee’s abode is located near that worksite), and (b) the worker spends a substantial amount of time at the permanent worksite. In other words, if the H-1B worker’s home or telecommute worksite is outside the area of intended employment, the 60-workday provision would not apply.

Non-Productive Time & H-1B Employment

Per the Dept. of Labor regulations, an employer must pay its H-1B employees at least the “required” wage, which is the higher of the prevailing wage or the employer’s actual wage (in-house wage) for similarly employed individuals.

Guaranteed minimum number of hours to be paid:  The guaranteed minimum number of hours to be paid for all periods to the H-1B worker is the number of hours that the employer reports on the Petition for Nonimmigrant Worker (Form I-129/I-129W). The guaranteed pay begins when an H-1B employee enters into employment, but in no case later than 30 days after the H-1B employee enters the U.S. to take the job or, where the employee is already in the U.S., 60 days after the H-1B employee is authorized to work for the employer.

An H-1B employer must pay the guaranteed minimum hours unless the H-1B employee is unavailable for work because of non work-related factors, such as the employee’s own voluntary request for time off, or in other circumstances where the worker is unable to work.  H-1B employees 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.  No payment is required under the H-1B program for non-productive time due to reasons not related to employment, such as a worker’s voluntary absence from work or a hospitalization, etc.

Pay Reductions: Under certain conditions, the Dept. of Labor regulations do allow for changes in pay, possibly reductions, as long as the wages do not drop below the prevailing wage.  Where adjustments are made in the employer’s pay system or scale during the validity period of the LCA, the employer shall retain documentation explaining the change and clearly showing that, after such adjustments, the wages paid to the H-1B worker are at least the greater of the adjusted actual wage or the prevailing wage for the occupation and area of intended employment.

Furloughs, Layoffs: Generally speaking, layoff or furlough do not apply to H-1B workers as these mechanisms put H-1B workers in non-productive status without pay, resulting in what is known as benching.   Employers are usually required to continue guaranteeing wages to H-1B employees at all times, productive or non-productive.  Under Dept. of Labor regulations, benching is subject to hefty penalties.

Forced PTO Likely Benching: As noted above, an H-1B employer must guarantee payment of wages at all times including, but not limited to any non-productive time caused by the employer except when such non-productive period of employment was a result of non work-related factors discussed above.

In some instances, employers may however require its employees including, but not limited to H-1B employees to utilize their accrued PTO so long as it does not violate any prevailing state laws and/or employer’s internal employment policies/practices.  However, even if state laws or employer’s own policies are not in violation, requiring/forcing an H-1B employee to utilize his/her PTO for non-productive time is not considered voluntary and therefore likely to be interpreted by the Dept. of Labor as benching (subject to back pay and penalties) even if every U.S. worker is forced to utilize the PTO.  Any PTO utilization by an H-1B employee must be 100% voluntary.

Dept. of Labor’s Reminder on Working Conditions Pertaining to Nonimmigrant Workers

In its recent guidance in April 2020, the Dept. of Labor has reiterated that the employment of H-1B, H-1B1 or E-3 nonimmigrant workers in the named occupation should not adversely affect the working conditions of similarly employed U.S. workers, and that nonimmigrant workers are afforded working conditions on the same basis, and in accordance with the same criteria, as offered to U.S. workers similarly employed.

USCIS Offices Preparing to Reopen on June 4

April 29, 2020 Leave a comment

On March 18, U.S. Citizenship and Immigration Services (USCIS) temporarily suspended in-person services at its field offices, asylum offices, and application support centers (ASCs) to help slow the spread of coronavirus (COVID-19). USCIS is readying offices to reopen on or after June 4. Employees in these offices are continuing to perform mission-essential services that do not require face-to-face contact with the public while the offices are closed.  While offices are temporarily closed, USCIS will continue to provide limited emergency in-person services. Please call the USCIS Contact Center for assistance with emergency services.

USCIS Contact Center: https://www.uscis.gov/contactcenter

President Trump Signs Executive Order Suspending Entry of Certain Immigrants

April 23, 2020 Leave a comment

President Donald Trump signed an Executive Order (EO) on April 22, 2020 suspending entry of immigrants into the United States.  The rationale provided by the President for signing the EO was that immigrants present risk to the U.S. labor market during the economic recovery following the COVID-19 outbreak.

Effective Date; Duration: The EO goes into effect at 11:59 p.m. EDT tonight (April 23), expiring 60 days from April 23, i.e. Monday June 22, 2020.

Leaves Room for Continuation and/or Modification: Whenever appropriate, but no later than 50 days from April 23, the Secretary of Homeland Security shall, in consultation with the Secretary of State and the Secretary of Labor, recommend whether the President should continue or modify the EO.

Leaves Room of Future Impact on Nonimmigrant Visa Programs Esp. Work Visas: The EO does not impact foreign workers in visa programs such as H-1B, L-1, TN and other nonimmigrant visa types at this time.  However, within 30 days from April 23, the Secretary of Labor and the Secretary of Homeland Security, in consultation with the Secretary of State, shall review nonimmigrant programs and shall recommend to the President other measures appropriate to stimulate the United States economy and ensure the prioritization, hiring, and employment of United States workers.

Who is Included in the EO (Subject to Suspension):

  • The entry of immigrants who are outside the United States and do not have a valid immigrant visa (i.e. a green card equivalent stamp typically issued by a U.S. consular post) as of the effective date of EO, or do not have an official travel document other than an immigrant visa (such as a transportation letter, an appropriate boarding foil, or an advance parole document) that is valid on the effective date or issued on any date thereafter that permits him or her to travel to the United States and seek entry or admission.  Immigrant Visa refers to the individuals seeking permanent residence, i.e. green card.

Who is Not Included in the EO (Exempt):

  • Lawful Permanent Residents of the United States, i.e. Green Card holders. If outside the U.S., they are not subject to the suspension of entry as a result of this EO.
  • Nonimmigrant visa applicants or holders (such as H-1B, L-1, F-1, etc.). However, as mentioned above, there is a 30 day-window within which Secretaries of the three Federal agencies are required to notify the President if any additional measures are necessary to protect the U.S. workforce.
  • Individuals with pending Form I-485 adjustment applications, holding an advance parole to return to the U.S.
  • Physicians, nurses, or other healthcare professionals entering the U.S. to perform medical research or other research intended to combat the spread of COVID-19; or to perform work essential to combating, recovering from, or otherwise alleviating the effects of the COVID-19 outbreak, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees;  and any spouse and unmarried children under 21 years old of any such alien who are accompanying or following to join such professionals.
  • EB-5 immigrant investors.
  • Spouses of U.S. citizens.
  • Individuals under the age of 21 that are either the children of U.S. citizens or prospective adoptees.
  • Individuals who further important United States law enforcement objectives, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees, based on a recommendation of the Attorney General or his designee.
  • Any member of the United States Armed Forces and any spouse and children of a member of the United States Armed Forces.
  • Any individual seeking to enter the United States pursuant to a Special Immigrant Visa in the SI (Iraqi and Afghan interpreters/translators) or SQ (Iraqis Who Worked for/on Behalf of the U.S. Government) classification, subject to such conditions as the Secretary of State may impose, and any spouse and children of any such individual.
  • Any individual whose entry would be in the U.S. national interest, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees.
  • Individuals seeking asylum or refugee status.

Implementation/Enforcement at the Consulates: The consular officers shall determine whether an immigrant has established his or her eligibility for any of the above-mentioned exceptions.

Quick Analysis: It is imperative to note that the EO does not suspend or restrict immigrant (such as I-140, I-130 etc.) or nonimmigrant (H-1B, L-1, etc.) visa petition filings with U.S. Citizenship and Immigration Services (USCIS) in the U.S.; does not prevent employers from applying for LCAs (Labor Condition Applications), PERM/Labor filings for individuals seeking permanent residence, or filing of selected H-1B cap-subject petitions.  The EO does not suspend or restrict filing of adjustment applications (I-485) by eligible foreign nationals physically present in the U.S. seeking to obtain permanent residence.  All applications that are typically filed with USCIS will continue to be accepted and are otherwise not impacted by the EO, at least for the next 30 days.

Our office will closely monitor the implementation of the EO and any actions taken by the Trump Administration pursuant to the EO over the course of next 60 days.

USCIS Continues Temporary Closures through May 3, 2020

April 1, 2020 Leave a comment

U.S. Citizenship and Immigration Services (USCIS) announced today, i.e. April 1, 2020 that the temporarily suspended in-person services at its field offices, asylum offices, and application support centers (ASCs) to help slow the spread of Coronavirus (COVID-19) will continue through May 3, 2020.  USCIS stated that it will begin to reopen its offices on May 4 unless the public closures are extended further.

USCIS Continues EAD Extension Cases by Reusing Biometrics

March 31, 2020 Leave a comment

On March 30, 2020, the U.S. Citizenship and Immigration Services (USCIS) announced that it will reuse previously submitted biometrics in order to process valid Form I-765, Application for Employment Authorization Document (EAD), extension requests due to the temporary closure of Application Support Centers (ASC) to the public in response to the Coronavirus (COVID-19) pandemic.  This should come as relief to many applicants who have been anxiously waiting to receive EAD cards.

USCIS Continues Temporary Closures through April 7

March 31, 2020 Leave a comment

On March 18, U.S. Citizenship and Immigration Services (USCIS) temporarily suspended routine in-person services to help slow the spread of Coronavirus 2019 (COVID-19).  USCIS plans to re-open our offices on April 7, unless the public closures are extended further.  USCIS domestic field offices will send notices to applicants and petitioners with scheduled appointments and naturalization ceremonies impacted by this temporary closure.  USCIS asylum offices will send interview cancellation notices and automatically reschedule asylum interviews.  When the interview is rescheduled, asylum applicants will receive a new interview notice with the new time, date and location for the interview.  When USCIS again resumes normal operations, it will automatically reschedule Application Support Center appointments due to the office closure.  Applicants will receive a new appointment letter in the mail.  Individuals who had InfoPass or other appointments at the field office must reschedule through the USCIS Contact Center, once field offices reopen to the publicPlease check the USCIS Field Offices page to see if your field office has reopened before reaching out to the USCIS Contact Center.

USCIS pushes certain RFE; NOID, NOIR, and NOIT deadlines by 60 days

March 27, 2020 Leave a comment

In response to the Coronavirus (COVID-19) pandemic, U.S. Citizenship and Immigration Services announced today that it is adopting a measure to assist applicants and petitioners who are responding to Requests For Evidence (RFEs) and Notices Of Intent to Deny (NOIDs) dated between March 1 and May 1, 2020. For applicants and petitioners who receive an RFE or NOID dated between March 1 and May 1, 2020, any responses submitted within 60 calendar days after the response deadline set forth in the RFE or NOID will be considered by USCIS before any action is taken.  The measure also applies to certain Notices of Intent to Revoke (NOIR) and Notices of Intent to Terminate (NOIT) regional investment centers, as well as certain filing date requirements for Form I-290B, Notice of Appeal or Motion (appealable decisions) with AAO jurisdiction during the same period, i.e. March 1 and May 1, 2020.

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