C&R Archives

Continuing Obligation to Pay Offered Wages to H-1B Workers

This is a reminder to all employers of H-1B foreign nationals.
The filing and approval of an H-1B Petition requires the employer to pay the H-1B worker no less than the wages offered in the H-1B Petition filed with USCIS. This requirement exists even for nonproductive time (i.e. time during which employee is not working) caused by conditions related to employment, such as lack of assigned work. However, no payment is required under the H-1B program for nonproductive time due to reasons not related to employment, such as a worker’s voluntary absence from work.
Any reductions in salary contemplated in light of the current economic situation which would lower the H-1B worker’s salary below the offered amount would constitute a violation of the employer’s obligations agreed to at the time of filing.
If the employer wishes to proceed with a salary reduction, they must file an amended Labor Condition Application and H-1B Petition, and must continue to offer wages which equal or exceed the “Prevailing Wage” for the occupation. Doing so will incur additional fees and costs including legal fees and government filing fees.
If the H-1B worker is now earning more than the wages offered in the H-1B Petition, the employer can reduce the wages to an amount no less than the amount offered in the Petition without filing an amendment.
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USCIS Extends Temporary Suspension of In-Person Appointments

On March 18, USCIS temporarily suspended all routine face-to-face services with applicants at all offices, including all interviews, biometrics appointments, and naturalization ceremonies. The temporary suspension is extended, and USCIS offices will re-open on May 3, 2020 unless the public closures are extended further. USCIS will continue to provide emergency services during this time.
USCIS will send de-scheduling notices to applicants and petitioners with scheduled appointments impacted by the public closure. USCIS will reschedule all applicants when USCIS resumes normal operations.
We will continue to provide you with updates as we receive them. Please note that our staff is currently working remotely. Please contact our office via email if you have any questions.
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DHS Announces Flexibility with I-9 Requirements During COVID-19 Pandemic

ue to precautions being implemented by employers and employees related to physical proximity associated with COVID-19, the Department of Homeland Security (DHS) announced some flexibility with respect to I-9 compliance requirements.
Employers with employees taking physical proximity precautions due to COVID-19 will NOT be required to review the employee’s identity and employment authorization documents in the employee’s physical presence. However, employers must inspect the Section 2 documents remotely (e.g., over video link, fax or email, etc.) and obtain, inspect, and retain copies of the documents, within three business days for purposes of completing Section 2.
Employers should enter “COVID-19” as the reason for the physical inspection delay in the Section 2 Additional Information field once physical inspection takes place after normal operations resume. Once the documents have been physically inspected, the employer should add “documents physically examined” with the date of inspection to the Section 2 additional information field on the Form I-9, or to section 3 as appropriate.
These provisions may be implemented by employers for a period of 60 days from March 20, 2020 OR within 3 business days after the termination of the National Emergency, whichever comes first. Employers who avail themselves of this option must provide written documentation of their remote onboarding and telework policy for each employee. This burden rests solely with the employers.
Once normal operations resume, all employees who were onboarded using remote verification, must report to their employer within three business days for in-person verification of identity and employment eligibility documentation for Form I-9, Employment Eligibility Verification. Once the documents have been physically inspected, the employer should add “documents physically examined” with the date of inspection to the Section 2 additional information field on the Form I-9, or to section 3 as appropriate.
This provision only applies to employers and workplaces that are operating remotely. If there are employees physically present at a work location, no exceptions are being implemented at this time for in-person documentation verification requirement. However, if newly hired employees or existing employees are subject to COVID-19 quarantine or lockdown protocols, DHS will evaluate this on a case-by-case basis.
Additionally, employers may designate an authorized representative to act on their behalf to complete Section 2. An authorized representative can be any person the employer designates to complete and sign Form I-9 on their behalf. The employer is liable for any violations in connection with the form or the verification process, including any violations in connection with the form or the verification process, including any violations of the employer sanctions laws committed by the person designated to act on the employer’s behalf.”
We will continue to provide you with updates as we receive them. Please note that our staff is currently working remotely. Please contact our office via email if you have any questions.
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USCIS Announces Important Processing Changes During COVID-19 Pandemic

IMMEDIATE SUSPENSION OF PREMIUM PROCESSING
U.S. Citizenship and Immigration Services (USCIS) has announced the immediate and temporary suspension of premium processing service for all Form I-129 and I-140 petitions until further notice due to Coronavirus Disease 2019 (COVID-19).
Effective today, March 20, 2020, USCIS will not accept any new requests for premium processing. USCIS will continue to process any petition with a previously accepted Form I-907, Request for Premium Processing Service, in accordance with the premium processing service criteria.
Petitioners who have already filed a Form I-129, Petition for a Nonimmigrant Worker, or Form I-140, Immigrant Petition for Alien Workers, using the premium processing service and who receive no agency action on their case within the 15-calendar-day period will receive a refund, consistent with 8 CFR 103.7(e). USCIS will notify the public with a confirmed date for resuming premium processing.
USCIS ANNOUNCES FLEXIBILITY IN SUBMITTING REQUIRED ORIGINAL SIGNATURES
USCIS has announced that it will accept all benefit forms and documents with reproduced original signatures, including the Form I-129, Petition for Nonimmigrant Worker, for submissions dated March 21, 2020, and beyond.
This means that a document may be scanned, faxed, photocopied, or similarly reproduced provided that the copy must be of an original document containing an original handwritten signature, unless otherwise specified. For forms that require an original “wet” signature, per form instructions, USCIS will accept reproduced original signatures for the duration of the National Emergency.
Individuals or entities that submit documents bearing an electronically reproduced original signature must also retain copies of the original documents containing the “wet” signature. USCIS may, at any time, request the original documents, which if not produced, could negatively impact the adjudication of the immigration benefit.
We will continue to provide you with updates as we receive them. Please note that our staff is currently working remotely. Please contact our office via email if you have any questions.
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Immigration Compliance During COVID-19 Pandemic

Given the current global pandemic, the closure of workplaces raises numerous questions regarding how employers can comply with normal Department of Labor and USCIS requirements, particularly with respect to H-1B employees. As of today, there has been no official guidance from the government. Leadership at the American Immigration Lawyers Association (AILA) has reached out to USCIS and DOL to request guidance and flexibility with respect to normal compliance requirements and are awaiting a response. However, in the interim, given the possibility that the government may not be so generous when reviewing work at home parameters, AILA recommends that you keep in mind the following:
DOL guidance does provide that an employer need not file a new LCA or amended petition for the new worksite not contemplated when initially filed (home address) if it is within the same metropolitan statistical area (“MSA”). An MSA is defined as “the area within normal commuting distance of the place (address) of employment where the H-1B nonimmigrant is or will be employed. There is no rigid measure of distance which constitutes a normal commuting distance or normal commuting areas (e.g. normal commuting distance might be 20, 30 or 50 miles…). The LCA posting associated with the initial filing is still required to be posted at the person’s home for ten consecutive business days, and the posting notices must be placed in the Public Access File when taken down.
If the employee’s home is outside the MSA in which worksite is located, the following rules apply:
Consider using the “Short Term Placement” option: you may place an H-1B worker at a worksite not listed on approved LCA for up to 30 workdays each year. That would equal 6 weeks of work at home.  If the quarantine lasts longer than 30 workdays, you would be required to file a new LCA to cover your employee’s home address and comply with the LCA notice requirements. An amended petition would also be required.
Please note that the American Immigration Lawyers Association has specifically requested that USCIS suspend or waive the requirement that employers must file an amended or new H-1B petition under the above circumstances. We will provide an update as soon as a response is received.
We will continue to provide you with updates as we receive them. Please note that our staff is currently working remotely. Please contact our office via email if you have any questions.
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Latest Updates on Coronavirus Impact on Immigration Processing

SUSPENSION OF IN-PERSON OPERATIONS AT USCIS
As of March 18, U.S. Citizenship and Immigration Services has suspended routine in-person services nationwide until at least April 1 to help slow the spread of Coronavirus Disease 2019 (COVID-19). This includes biometrics appointments, interviews and naturalization ceremonies. USCIS staff will continue to perform duties that do not involve contact with the public. However, USCIS will provide emergency services for limited situations.
USCIS will send notices to applicants and petitioners with scheduled appointments and naturalization ceremonies impacted by this closure. When USCIS again resumes normal operations, USCIS will automatically reschedule appointments due to the office closure. You will receive a new appointment letter in the mail.
                   TEMPORARY CLOSURE OF U.S.-CANADA BORDER
According to the latest news reports, the US-Canada border will close to non-essential travel to slow the spread of COVID-19. There is no official word yet as to when this will take effect but we expect it will be soon.
We will continue to provide you with updates as we receive them. Please note that our staff is currently working remotely. Please contact our office via email if you have any questions.
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Coronavirus on Immigration Processing

By now you are all aware of the dramatic impact the virus is having on business as usual. The normal operations of the Immigration Service in the U.S., the U.S. Consulates abroad, and our office are not exempt from these disruptions.
Beginning tomorrow our attorneys and support staff will primarily be working from home, like many of our clients. This is obviously not ideal but we will make every effort to adjust as seamlessly as possible to the new reality. Our focus in the coming days will be on matters that require immediate attention, and we are confident we can take care of these matters.
Email continues to be the best way to communicate with us. Clients can also continue to call our office and leave messages for any of our staff. These voice messages are converted to emails and can be responded to from our homes.
We expect that USCIS will soon begin to cancel interviews at the local District Offices, though there has been no announcement to this effect yet. In the meantime, we are encouraging clients to consider rescheduling upcoming interviews, and we are prepared to assist them in making that request. Unfortunately, whether the request is initiated by our clients or USCIS edict, we cannot estimate when interviews may resume.
Several U.S. Consulates have already suspended visa interviews and we fully expect this trend to continue.
Processing times for cases filed at USCIS Service Centers may well increase, since Service employees may also be given the opportunity to work from home.
Please stay in touch with our office if you have any questions or comments. We appreciate your patience, and we trust you will take all necessary precautions to protect yourselves and your families in this trying situation.
Please contact our office if you have any questions.
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USCIS Imposes Stringent New “Public Charge” Requirements

Effective February 24, 2020, USCIS will begin imposing much more stringent requirements related to “public charge”. An individual who is deemed likely to become a “public charge” will be found inadmissible to the U.S.

USCIS defines a “public charge” as an individual who is likely to become “primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance, or institutionalization for long-term care at government expense.” In determining whether an individual meets this definition for public charge inadmissibility, a number of factors will be considered, including age, health, family status, assets, resources, financial status, education, and skills. No single factor will determine whether an individual is a public charge.

These new requirements will apply to all applicants for admission to the U.S., individuals who are seeking to adjust their status to that of lawful permanent resident (“green card”) in the U.S. and those who hold a nonimmigrant visa and are seeking to extend their stay in the same nonimmigrant classification or to change their status to a different nonimmigrant classification.

In order for USCIS to make a determination as to whether an individual will likely become a “public charge”, the government will now require the completion of a new, burdensome form (Form I-944) and the submission of extensive supporting documentation (including, but not limited to, the individual’s financial and educational documents) with any adjustment of status application. For applications for extension of stay or change of non-immigrant status, USCIS has revised existing forms to include specific questions regarding public charge. Supporting evidence will also be required for these applications.

We understand that these new requirements will make the already complex U.S. immigration process even more difficult and frustrating but we pledge to do our best to develop efficient practices and procedures to help our clients deal with these matters in the most efficient and cost-effective way possible.

Please contact our office if you have any questions.

 

Trump Administration Expands Travel Bans to Six Additional Countries 

On January 31, 2020, President Trump signed a Presidential Proclamation that expands the current travel ban to include certain nationals from Burma (Myanmar), Eritrea, Kyrgyzstan, Nigeria, Sudan, and Tanzania. The Proclamation is due to go into effect on February 21, 2020.

Nationals of Burma (Myanmar), Eritrea, Kyrgyzstan, and Nigeria, with some exceptions, will be barred from entering the U.S. as immigrants.  With respect to Sudan and Tanzania, the ban applies only to immigrants under the Diversity (“green card”) Lottery. Immigrants refers to those who are seeking admission to the U.S. on a permanent basis through family, employment or through the Diversity Lottery program.

The expanded travel ban does not apply to nonimmigrants, such as business visitors, tourists, students, exchange visitors, or temporary workers (e.g. H or L visa holders) from these countries.

The expanded ban applies to persons who are outside the U.S. on the effective date and who do not already have a valid U.S. immigrant visa that was issued before February 21, 2020.

Please contact our office if you have any questions.

 

USCIS Announces Registration Program for Cap-Subject H-1B Petitions

USCIS has confirmed that employers seeking to file cap-subject H-1B Petitions for employment to begin on October 1, 2020 must first complete an online registration providing basic information about the employer and the prospective worker.

The initial registration period commences on March 1, 2020 and ends on March 20, 2020.  A $10 fee is payable in order to register. A random selection process (if needed) will then be conducted and successful applicants will be invited to submit a complete H-1B Petition with supporting documentation. If an insufficient number of registrations are submitted to utilize all 85,000 H-1B numbers, an additional registration period will be announced.

In the coming weeks, the Service will provide additional guidance on the information required to submit a proper registration, as well as further details about the process.  We will pass along additional information as soon as it becomes available.

Please contact our office if you have any questions.