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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.

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.

USCIS Increases Premium Processing Fee

November 6, 2019 Leave a comment

The U.S. Citizenship and Immigration Services (USCIS) announced that beginning on December 2, 2019, it is adjusting the filing fee to request premium processing for certain employment-based petitions.  The premium processing fee will increase to $1,440 from the current fee of $1,410 for Form I-129, Petition for a Nonimmigrant Worker, and Form I-140, Immigrant Petition for Alien Worker.

H-1B Cap Filings-Electronic Registration; Reversal of Cap Count

January 30, 2019 Leave a comment

The U.S. Citizenship and Immigration Services (USCIS) recently proposed a few changes to the H-1B visa program.  Most notably, introduction of electronic registration requirement for employers in order to file the H-1B cap petitions and the reversal of how cap numbers are counted/allocated.  The proposed regulation which went through a comments period prior to being sent to OMB for review (Office of Management and Budget) has been approved by OMB yesterday.  The USCIS has just released the final regulation today. 

Summary of Changes:

Mandatory Electronic Registration Requirement (but fortunately not for this year):

  • USCIS is introducing the electronic registration requirement for employers in order to file H-1B cap-subject petitions on behalf of foreign workers.  The good news is that USCISis suspending the electronic registration requirement for the upcoming FY 2020 (i.e. April 1, 2019 filings) H-1B cap season so as to allow itself to undertake user testing of the electronic registration system and to ensure the system and process are fully functional forFY 2021 (April 1, 2020) H-1B season.  What this means for employers is for this year, the process of filing H-1B cap cases remains the same with no electronic registration requirement, etc. 
  • Once the electronic registration takes effect sometime next year, employers who seek to file H-1B cap petitions will need to electronically register as a first step during a designated electronic registration period, unless the registration requirement is temporarily suspended.
  • USCIS will announce the start date of the initial registration period on its website for each fiscal year at least 30 days in advance of the opening of the registration period. The registration period will last a minimum of 14 calendar days and will start at least 14 calendar days before the earliest date on which H-1B cap-subject petitions may be filed for a particular fiscal year.
  • An H-1B employer (or agent/attorney) must electronically submit a separate registration to file a petition for each foreign worker it seeks to register, and each beneficiary must be named.  Cannot register a petition without the Beneficiary’s full legal name. 
  • An employer cannot submit more than one registration for each foreign worker for the given fiscal year. In other words, no duplicate filings and if an employer is found to have been involved in duplicate registrations, all registrations pertaining to that employer for that foreign worker will be invalidated.
  • If/when a visa lottery takes place, USCIS will notify via a written notice to the employers whose petitions have been selected to file an H-1B petitions for the named foreign workers in the notice within a given filing period indicated on the notice.  Such employers must submit the petition and support documents, which is at the minimum 90 days per the final regulation.

Reversal of Cap Count Coming this year itself:

Current Process:

The current process of counting cap-subject cases in the instance where H-1B filings hit the cap in the first five business days is that-

  • First Step:  The Advanced degree (US Master’s cap) exemption foreign workers (US Master’s of higher) are selected in 20,000 cap; and
  • Second Step: Once the Master’s cap cases have been counted, the regular H-1B cap (65,000) cases are selected including any US advanced degree-holder petitions that did not get selected in the US Master’s cap.

Upcoming Change in Process for April 1, 2019:

The proposed change which became part of the final rule starting the upcoming FY 2020 cap season (starting April 1, 2019) will essentially reverse the selection order: 

  • First Step: It will count all foreign workers towards the number projected as needed to reach the regular H-1B cap first.
  • Second Step: Once a sufficient number of applicants have been selected for the regular H-1B cap, USCIS would then select foreign workers towards the 20,000 US Master’s cap. 

The USCIS predicts that changing the order in which they cases are counted will likely increase (up to 16%) the number of beneficiaries with a U.S. master’s or higher degree.

Denial without an RFE or NOID (Currently in Effect)

October 11, 2018 Leave a comment

Recently, the U.S. Citizenship and Immigration Services (USCIS) guidance pertaining to denial of certain petitions or applications without first issuing an RFE (Request for Evidence) or NOID (Notice of Intent to Deny) went into effect.  It became effective on September 11, 2018.

What is the guidance about:    The guidance empowers USCIS adjudicators with the discretion (total free will) to deny an application, petition, or request without first issuing an RFE or NOID if initial evidence is not submitted or if the evidence in the record does not establish eligibility.

When and what type of cases is it applicable: Starting September 11 when the policy went into effect, the USCIS adjudicators now have complete discretion to deny cases without issuing an RFE or a NOID first. This includes any filing in which the applicant, petitioner, or requestor has no legal basis for the benefit/request sought or submits a request for an immigration benefit or relief under a program that has been terminated.  Moreover, if all required initial evidence is not submitted with the petition or application, USCIS in its discretion may deny for failure to establish eligibility based on lack of required initial evidence.  What is considered “required” can be very subjective and arbitrary in interpretation of adjudicators.  Types of cases include pretty much all immigration benefits – H-1B, H-4, L-1/L-2, green card cases, family based cases, waiver applications etc.

What are the documentary examples of initial evidence in the context of H-1B:  USCIS has recently provided examples of what it regards as initial evidence to be filed with a H-1B petition:

  • Evidence the beneficiary maintained status if seeking a change of status or extension of stay
  • Evidence showing the proposed employment qualifies as a specialty occupation
  • Evidence showing the beneficiary is qualified to perform the specialty occupation
  • A copy of any required license or other official permission for the beneficiary to perform the specialty occupation in the state of intended employment (if applicable)
  • A copy of any written contract between the employer and the beneficiary or a summary of the terms of the oral agreement under which the beneficiary will be employed.
  • An itinerary showing the date and places of assignment if the petition indicates that the beneficiary will be providing services at more than one location.
  • A corresponding Labor Condition Application (LCA) that has been certified by the Department of Labor (DOL) and signed by the petitioner and attorney/representative, if applicable.

What you can do to potentially avoid a denial without an RFE/NOID:  In addition to the above, for the past several years, our office has been providing clients with and using a comprehensive list of documents as a guide in H-1B filings.  This has helped us get overwhelmingly positive results in our filings for many years.

It is highly imperative to note that the process has become quite arbitrary leaving to each USCIS adjudicator the decision/discretion to approve or deny a case with the evidence submitted.  For instance, if a H-1B petition is filed without an end client letter in a client site placement situation (we believe this piece of document is extremely critical), one adjudicator may not consider this as part of initial evidence and may issue an RFE or an NOID while another adjudicator may simply decide to deny the case for failing to prove proper corporate relationship/proof of placement at the end client.  Thus, this highly arbitrary and subjective process will further complicate matters for H-1B employers.  Please consider providing as much information and documents as possible with each filing.

USCIS received over 236,000 H-1B petitions in April 2016

April 20, 2016 Leave a comment

U.S. Citizenship and Immigration Services (USCIS) announced on April 7, 2016, that it has received enough H-1B petitions to reach the statutory cap of 65,000 visas for fiscal year (FY) 2017. USCIS has also received more than the limit of 20,000 H-1B petitions filed under the advanced degree exemption, also known as the master’s cap.

USCIS received over 236,000 H-1B petitions during the filing period, which began April 1, including petitions filed for the advanced degree exemption. On April 9, USCIS used a computer-generated random selection process, or lottery, to select enough petitions to meet the 65,000 general-category cap and the 20,000 cap under the advanced degree exemption. USCIS will reject and return all unselected petitions with their filing fees, unless the petition is found to be a duplicate filing.

The agency conducted the selection process for the advanced degree exemption first. All unselected advanced degree petitions then became part of the random selection process for the 65,000 limit.

USCIS will begin premium processing for H-1B cap cases no later than May 16, 2016.

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