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.

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

March 26, 2020 Leave a comment
Employment
Based
All Countries
Areas except Those Listed
CHINA-mainland
Born
El-Salvador
Guatemala
Honduras
India
Mexico
Philippines
Vietnam
1st
01JUN19
08JUN17
01JUN19
01MAY15
01JUN19
01JUN19
01JUN19
2nd
C
01SEP15
C
25MAY09
C
C
C
3rd
01JAN17
15APR16
01JAN17
22JAN09
01JAN17
01JAN17
01JAN17
Other
Workers
01JAN17
01JUL08
01JAN17
22JAN09
01JAN17
01JAN17
01JAN17
4th
C
C
15JUL16
C
22JAN18
C
C
Certain
Religious Workers
C
C
15JUL16
C
22JAN18
C
C
5thNon-Regional Center
(C5 and T5)
C
15MAY15
C
01JAN19
C
C
08FEB17
5th
Regional Center
(I5 and R5)
C
15MAY15
C
01JAN19
C
C
08FEB17

COVID-19 and Temporary Work Visas

March 26, 2020 Leave a comment

Over the past several days, our firm has received numerous inquiries from our clients regarding the COVID-19 pandemic and the impact on immigration, specifically with regard to H-1B, L-1A/B visa holders.

COVID-19 & National Emergency: President Trump declared a National Emergency concerning the Novel Coronavirus Disease (COVID-19) outbreak effective March 1, 2020.  Several government agencies including, but not limited to the Department of Labor, U.S. Citizenship and Immigration Services (USCIS) have been actively involved in adapting to the quickly changing circumstances and issuing directives on several matters. For instance, USCIS recently relaxed the “wet ink” signature requirements during the current National Emergency, closed offices nationwide, and suspended premium processing service.

Actual Worksite & Remote Worksite during COVID-19

One of the concerns surrounds the issue of worksite placement regarding H-1B employees.  In light of COVID-19 pandemic and “Shelter-in-Place” or “Stay-at-Home” orders issued by many states in the United States, H-1B employers are faced with the puzzling scenario of having an H-1B employee’s worksite becoming temporarily unavailable/closed for an indefinite period.  In several instances, these worksites belong to third-party companies.  Business have by and large swiftly acclimatized to these changes by establishing resources to have employees and consultants work remotely.

How does the remote access/work fit into the H-1B scenario? 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 employer’s H-1B employee is simply moving to a new worksite(s) within the same area of intended employment, a new LCA is not generally required. Therefore, provided 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 workers to other worksite(s), which were unintended at the time of filing the LCA, without needing to file a new LCA, provided that the worksite(s) are within the same area of intended employment covered by the approved LCA.

In case of move within the same area of intended employment, the employer must provide either electronic or hard-copy 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. 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 petition with USCIS.

When is the Notice required to be provided? Notice is generally required to be provided on or before the date any worker on an H-1B, H-1B1, or E-3 visa employed under the approved LCA begins work at the new worksite(s). Because Dept. of Labor acknowledges employers affected by the COVID-19 pandemic may experience various service disruptions, the Notice will be considered timely when placed as soon as practical and no later than 30 calendar days after the worker begins work at the new worksite(s).

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.

What about L-1A/B visa holders? Since LCA requirements are not applicable to L-1A/B visa holders, in light of the recent COVID-19 pandemic, employers that are unable to have workers work at the location(s) stipulated on the L-1 petition may exercise prudence in having L-1A/B workers work remotely.  If an L-1 employer indeed considers the remote work option, we urge that such remote work option be limited to the period when the state(s) where the employee resides/works has “Shelter-in-Place” or “Stay-at-Home” remains in effect.  In other words, do not have the employee work at a location (remote) other than the one stated on the L-1 petition if the employee is able to legally and safely return to/commute to/from the actual stipulated worksite(s).

Filing a Labor Condition Application (LCA) for the H-1B, H-1B1, or E-3 program and unable to provide a hard-copy notice of the LCA filing due to the COVID-19 pandemic?   Dept. of Labor regulations require that H-1B, H1-B1, and E-3 employers filing an LCA provide notice of LCA filing by undertaking to post the Notice LCA filing (hard copy or electronic notice) at two conspicuous location(s) for a total of 10 calendar days. Such posting must occur on or within 30 days before the date of an LCA filing.

However, during this COVID-19 pandemic, and in general, employers should also be aware that the regulations allow employers to provide electronic notice of an LCA filing. For electronic notice, employers may use any means ordinarily used to communicate with its employees about job vacancies or promotion opportunities, including its website, electronic newsletter, intranet, or email.  If employees are provided individual direct notice, such as by email, notification is only required once and does not have to be provided for 10 calendar days. Further, the employer must provide a copy of the certified LCA to the H-1B, H-1B1, or E-3 worker(s) no later than the date the nonimmigrant worker reports to work at the worksite location.

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.

Furloughs, Layoffs: Generally speaking, a layoff is a temporary separation when an employer intends to rehire a laid off employee.  In some instances, it could result in actual termination of one’s employment or unpaid leave of absence for short-term or extended period without the eligibility/access to company’s benefits.

A Furlough is a voluntary or an involuntary temporary layoff that may consist of a complete stoppage of work or reduced work hours over a period of time.  For instance, a reduction of one day a week for a year, etc.  In a Furlough, employees are generally asked to take unpaid leave of absence but they continue to be employed thereby maintaining their ability to have access to company’s benefits.

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.  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, a forced PTO (involuntary) could be construed by the U.S. Dept. of Labor as benching, which could result in back pay and penalties.  It is imperative to note that employees may be eligible for sick/family leave provided under the recently enacted Families First Coronavirus Response Act (FFCRA).  FFCRA requires certain employers to provide their employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19.  More information on this may be found here: https://www.dol.gov/agencies/whd/pandemic/ffcra-employer-paid-leave

In the absence of utilization by the employee of any PTO (subject to state laws/employer’s policy) or the employee’s FFCRA leave eligibility, employers are generally required to continue guaranteeing wages to H-1B employees at all times, productive or non-productive.  Failing to do so is considered ‘benching’ under the Dept of Labor regulations and is subject to hefty penalties.

Employer’s Inability to Meet Wage Obligations & H-1B Termination: If an employer is unable to continue guaranteeing the wages, i.e. fail to meet the wage obligations arising under an H-1B petition, such an employer might unfortunately consider terminating the employment of an H-1B employee.  Should an employer choose to terminate an H-1B employee, it is required to notify the employee of the termination, notify the USCIS of such termination and request revocation of H-1B approval, and also provide return transportation costs to the terminated H-1B employee.  At USCIS’ discretion, terminated H-1B employees may be eligible for a grace period of up to sixty (60) days or the validity of the authorized period of H-1B stay, whichever is shorter.  That said, our experience has not been that of a positive one when it comes to USCIS’ discretion in these types of cases.

Other Options:  If an employer is unable to guarantee the wages under an approved H-1B petition, it could also consider the option of amending the H-1B petition requesting a ‘conversion’ from full-time (typically 35 hours or more) to that of a part-time employment.  Moreover, there has been past guidance from USCIS/DOL wherein an employer that has undertaken mass salary reduction (across-the-board pay cuts) to all of its employees (not just H-1B employees) was not required to file an LCA or an amended petition so long as the reduced salary still meets or exceeds the required wage (higher of prevailing wage or actual wage).  However, such across-the-board pay cuts must be well-documented and should be disclosed to the USCIS during the next H-1B filing and also disclosed on the public access file for the given LCA.

USCIS Suspends Premium Processing for All Petitions

March 26, 2020 Leave a comment

On Friday March 20, 2020, the U.S. Citizenship and Immigration Services (USCIS) announced the immediate and temporary suspension of premium processing service for all Form I-129 (H-1B, L-1A, L-1B etc) and I-140 petitions (EB-2, EB-3 etc) until further notice due to Coronavirus Disease 2019 (COVID-19).  USCIS will not accept any new requests for premium processing. USCIS will process any petition with a previously accepted in accordance with the premium processing service criteria. Petitioners who have already filed a Form I-129 or Form I-140, using the premium processing service and who receive no agency action on their case within the 15-calendar-day period will receive a refund.

This temporary suspension includes petitions filed for the following categories:

  • I-129: E-1, E-2, H-1B, H-2B, H-3, L-1A, L-1B, LZ, O-1, O-2, P-1, P-1S, P-2, P-2S, P-3, P-3S, Q-1, R-1, TN-1 or TN-2.
  • I-140: EB-1, EB-2 or EB-3.

H-1B Cap Premium Processing Suspension was Initially Announced

Earlier (March 16, 2020), USCIS announced the temporary suspension of premium processing service for FY2021 cap-subject H-1B petitions. The petitioners filing FY2021 cap-subject H-1B petitions will not be able to request premium processing when USCIS begins accepting cap-subject petitions on April 1. Petitioners filing FY 2021 cap-subject H-1B petitions will not be able to request premium processing when USCIS begins accepting cap-subject petitions on April 1. Until premium processing resumes for FY 2021 cap-subject H-1B petitions, USCIS will reject any Form I-907 concurrently filed with a cap-subject H-1B Form I-129.

Two-Phased Implementation Approach: As USCIS has done in the past, premium processing will resume in a two-phased approach during the FY 2021 cap season so that USCIS can best manage premium processing requests. The first phase will include FY 2021 cap-subject H-1B petitions, including those eligible for the advanced degree exemption, requesting a change of status from F-1 nonimmigrant status. The second phase will include all other FY 2021 cap-subject petitions.

USCIS stated that it will resume premium processing for FY 2021 cap-subject H-1B petitions requesting a change of status from F-1 nonimmigrant status no later than May 27, 2020 (but this could change in light of the recent announcement of total premium processing suspension), and that it will notify the public before premium processing resumes for these petitions.  The earliest date that USCIS will resume premium processing for all other FY 2021 cap-subject H-1B petitions is June 29, 2020 (but this could change in light of the recent announcement of total premium processing suspension).

H-1B Cap Electronic Registration Begins March 1, 2020

January 23, 2020 Leave a comment

For the first time, the U.S. Citizenship and Immigration Services (USCIS) is introducing electronic registration of H-1B cap cases this fiscal year, i.e. Fiscal Year 2021 (October 1, 2020 through September 30, 2021).  The Final Rule regarding H-1B visa lottery process added H-1B electronic registration requirement for employers seeking to submit H-1B cap-subject petitions for the FY2021.

Following are the H-1B cap updates for FY2021:

  • USCIS will require all H-1B cap-subject petitioners (employers) or the authorized representative (attorney filing an H-1B case) first electronically register and pay the H-1B registration fee of $10.00. This includes advanced degree exemption (U.S. Master’s cap) as well.
  • The initial registration period will start on March 1, 2020 and will close on March 20, 2020. Actual end date will be announced by the USCIS on its website.
  • USCIS intends to notify registrants with the selected registrations from the initial registration period no later than March 31, 2020. These notifications must be received before the petitioners or authorized representatives are able to file/submit the H-1B petition for the registered beneficiary.
  • If USCIS determines that it is necessary to re-open the initial registration period, it will announce the start of the re-opened registration period on their website.
  • An employer may only submit one (1) registration per beneficiary in any fiscal year. If more than one registration for the same beneficiary in the same fiscal year is submitted, USCIS will consider all filed registrations filed by the employer for that beneficiary invalid for that fiscal year.
  • Unselected registrations will be removed from the registration system at the end of the fiscal year by the USCIS.

USCIS will require the following information for electronic registration:

For the H-1B Employer/Petitioner

  • Completed Form G-28, Notice of Entry of Appearance as Attorney or Accredited Representative
  • Legal name of the petitioner
  • If the petitioner has a “Doing Business As” name, the DBA name
  • Petitioner’s Federal Employer Identification Number (EIN)
  • Petitioner’s primary U.S. office address (street number and address, city, state, province, and zip code)
  • Petitioner’s authorized signatory’s full legal name (first, middle, last), title, and daytime phone number and e-mail address
  • An attestation regarding the authorized signatory’s signature

For the H-1B Beneficiary

  • Beneficiary’s full legal name (first, middle, last)
  • Beneficiary’s date of birth
  • Beneficiary’s country of birth
  • Beneficiary’s country of citizenship
  • Beneficiary’s gender (Male or Female)
  • Does the Beneficiary have a U.S. Master’s degree or higher?
  • Beneficiary’s current passport number

We will provide further information and updates shortly regarding the H-1B cap filings as it becomes available.

Fraud Alert: Office of the Citizenship and Immigration Services Ombudsman Telephone Numbers Used in Scam to Obtain Personally Identifiable Information

December 6, 2019 Leave a comment

We have been informed that the Office of the Citizenship and Immigration Services Ombudsman (Ombudsman) would like to warn its stakeholders of reports that certain Department of Homeland Security (DHS) telephone numbers, including the Ombudsman’s main telephone number, have been used recently as part of a telephone spoofing scam targeting individuals throughout the country. Spoofing is the deliberate falsifying of information transmitted to a caller ID display to disguise an identity.

The Ombudsman’s Office numbers (202-357-8100 and 1-855-882-8100) appear to have been compromised.  The scammers use various tactics, such as the threat of identity theft, to elicit sensitive information. Very little is known at this time, but please be aware that we – indeed any government office – would never ask for sensitive information over the telephone, such as Social Security numbers or credit card information.

Please note that it continues to be safe to make calls to the Ombudsman’s Office using our telephone numbers and email posted to our website.

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