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USCIS Updates Policy Pertaining to Adjustment of Status Adjudications

November 19, 2020 Leave a comment

On November 17, 2020, the U.S. Citizenship and Immigration Services (USCIS) updated its policy guidance regarding discretionary factors to consider when making a decision pertaining to adjustment of status applications. In adjustment cases, the applicants have the burden of demonstrating eligibility, including that a favorable exercise of discretion by USCIS is warranted.

If an applicant otherwise establishes eligibility and USCIS finds the positive discretionary factors in a particular case outweigh the negative factors, the officer should exercise favorable discretion and approve the adjustment application. Conversely, if the negative factors outweigh the positive factors an exercise of discretion to deny is appropriate.

USCIS considers the totality of the circumstances, which may include factors such as an applicant’s conduct, character, family or other lawful ties to the United States, immigration status and history, or any other humanitarian concerns, to determine whether the applicant warrants a favorable exercise of discretion.

The Nov 17 2020 guidance consolidates existing guidance on the privileges, rights, and responsibilities of lawful permanent residents and it the updated guidance provides a list of factors and factual circumstances for adjustment of status that officer consider when undertaking discretionary analysis.  For example, in employment-based adjustment cases – the officers could look at following (the list is not exhaustive):

  • Positive Factor: Employment history, including type, length, and stability of the employment.
  • Positive Factor: Education, specialized skills, and training obtained from an educational institution in the United States relevant to current or prospective employment and earning potential in the United States.
  • Negative Factor: History of unemployment or underemployment
  • Negative Factor: Unauthorized employment in the United States
  • Negative Factor: Employment or income from illegal activity or sources, including, but not limited to, income gained illegally from drug sales, illegal gambling, prostitution, or alien smuggling.

In family-based adjustment cases – the officers could look at following (the list is not exhaustive):

  • Positive Factor: Family ties to the United States and the closeness of the underlying relationships.
  • Positive Factor: Hardship to the applicant or close relatives if the adjustment application is denied.
  • Positive Factor: Length of lawful residence in the United States, status held and conduct during that residence, particularly if the applicant began his or her residency at a young age.
  • Negative Factor: Absence of close family, community, and residence ties

USCIS Updates Policy Guidance Pertaining to Naturalization Process

November 19, 2020 Leave a comment

On November 18, 2020, the U.S. Citizenship and Immigration Services (USCIS) updated its policy guidance to effectuate changes regarding prerequisite of Lawful Admission for Permanent Residence under all applicable provisions for purposes of Naturalization.

Applicants for naturalization must meet the fundamental requirements as lawful permanent residents (LPR) such physical presence, continuous residence among other criteria. In addition to meeting other requirements under the pertinent naturalization rules, an applicant has the burden of establishing that he or she was lawfully admitted to the United States for permanent residence. Key updates to the Policy:

  • An applicant is ineligible for naturalization in cases where the applicant did not obtain LPR status lawfully (including cases where the U.S. government was unaware of disqualifying material facts and had therefore previously granted adjustment of status to that of an LPR or admitted the applicant as an LPR).
  • Provides further guidance on circumstances under which USCIS may find an applicant to not have been lawfully admitted for permanent residence and therefore ineligible for naturalization.
  • USCIS will review to determine whether an applicant has abandoned his or her LPR status during the adjudication of the naturalization application.
  • USCIS may deny naturalization applications, filed on or after November 18, 2020 (effective date of policy), if the applicant is in removal proceedings because USCIS lacks the authority to consider the merits of a naturalization application if the applicant has a pending removal proceeding initiated by a warrant of arrest.

October 2020 Employment-Based Visa Numbers – Eligibility to File Adjustment of Status Applications

October 1, 2020 Leave a comment
Employment-
based
All Countries 
Except
Those Listed
in the Table
CHINA-
mainland
born
EL SALVADOR
GUATEMALA
HONDURAS
INDIA
MEXICO 
PHILIPPINES 
1st
C
01SEP20
C
01SEP20
C
C
2nd
C
01OCT16
C
15MAY11
C
C
3rd
C
01JUN18
C
01JAN15
C
C
Other Workers
C
01OCT08
C
01JAN15
C
C
4th
C
C
01FEB18
C
C
C
Certain Religious Workers
C
C
01FEB18
C
C
C
5th Non-
Regional
Center
(C5 and T5)
C
15DEC15
C
C
C
C
5th Regional
Center
(I5 and R5)
C
15DEC15
C
C
C
C

Settlement with USCIS in EAD Class Action Lawsuit

August 27, 2020 Leave a comment

The settlement has three main components:

  • Sub-class 1, defined as the group of individuals who have received an I-765 approval notice, and the production of the EAD has been ordered but not completed.
    • There were 27,829 individuals in this group as of Thursday, August 20, 2020.
    • All EADs for this group will be produced and mailed by Friday, August 28, 2020.
  • Sub-class 2, defined as the group of individuals who have received an I-765 approval notice, and the production of the EAD has not been ordered.
    • There are 17,736 individuals in this sub-class.
    • For the most part, the reason the EAD has not been ordered is that biometrics have not been captured. USCIS claims biometrics are required. This issue was not resolved by the Court. Biometrics for this sub-class have all been scheduled, and except for 18 individuals, will be completed by September 15, 2020.
    • For the remaining 18 individuals, the biometrics will be completed by September 22, 2020. The EADs for this sub-class will be produced and mailed within 7 business days of the capture of biometrics.
  • USCIS agreed to post a notice on its website that for the interim period until the EAD cards can be produced, employees may use a Form I-797 Approval Notice, with a notice date on or after December 1, 2019 through and including August 20, 2020 informing an applicant of an approval of a Form I-765 as a valid List C document for Form I-9. The notice was posted on August 19, 2020, and will be effective through December 1, 2020. All of the EAD cards should be produced and delivered before this date.

It is believed that there were approximately 30,000 EADs produced and mailed between the date the complaint was filed on July 22, 2020 and the date the class list was prepared on August 20, 2020.

Categories: USCIS Tags: ,

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.

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