March 24, 2015
Now that this year's H-1B cap filing date of April 1st is fast approaching, many employers and foreign workers want to know, isn't there any other option?
For citizens of some countries, there are treaty-based visa categories for professional workers which may provide a viable alternative. Each is slightly
different in its requirements and limitations.
For citizens of Chile, Singapore, Australia, Canada or Mexico, there are treaty-based visa categories for professional workers that remain available when
the H-1B is not. One key difference is that the H-1B allows “dual intent,” so a worker may be present in the US under H-1B status, and yet legally take
steps to pursue permanent residence. All of the treaty-based work visa classifications for professionals require continued “non-immigrant intent,” so
workers in H-1B1, E-3 or TN-1 status must have an unabandoned residence abroad to which they intend to return. These visa categories are for salaried jobs
with a US employer; they do not allow self-employment or freelancing.
H-1B1: Chile & Singapore.
Like the H-1B, the H-1B1 is for offered work with a US employer in a professional specialty occupation - i.e., a job that requires at least a
Bachelor's or advanced degree in a field directly related to the job duties. The worker must have a related degree, and the US employer must agree to
pay the local prevailing wage for that occupation, and must file a Labor Condition Application with the US Department of Labor, with the same
attestation, compliance and Public Access File recordkeeping responsibilities that apply to an H-1B employer. However, there the similarities end. No
petition to USCIS is required, so the H-1B1 worker may take the certified LCA, employer's letter, and original educational credentials, and apply for
the visa abroad at a US Embassy or Consulate. The annual cap (numerical limit) of 6,800 for the H-1B1 has never been reached, so these applications may
be filed at any time year round, for an immediate start date. H-1B1 status is available in one-year increments, and is renewable. There is no
"portability" between different H-1B1 jobs, or from H-1B1 to H-1B.
The E-3 is also for offered work with a US employer in a professional specialty occupation – i.e., a job that requires a Bachelor’s or advanced degree
in a field directly related to the job duties. The worker must have a related degree, and the US employer must pay the prevailing wage for that
occupation, and must file a Labor Condition Application with the Department of Labor, with the same attestation, compliance and Public Access File
recordkeeping responsibilities that apply to an H-1B or H-1B1 employer. No petition to USCIS is required, so the worker can take the certified LCA,
employer’s letter, and original educational credentials and apply for the visa at a US Embassy or Consulate. The annual cap of 10,000 for the E-3 has
never been reached, so applications can be filed at any time, year-round, for a start date at any time. E-3 status is available in two-year increments,
and is renewable. There is no portability between jobs for E-3 workers, no Premium processing for petition-based filings, and no automatic continuation
of work authorization based on a timely-filed extension request. For these reasons, travel abroad and a new visa application by the E-3 worker are
often more efficient than filing a petition to extend or change employment.
TN-1: Canada & Mexico.
The TN-1 visa category is available to citizens of Canada or Mexico who have a valid passport, a job offer to work in the US in one of the 64
professions enumerated in Appendix 1603.D.1 to the North America Free Trade Act (NAFTA), and have the required education listed in the treaty for that
profession. There is no prevailing wage requirement, and no filings with the Department of Labor, so unlike the H-1B1 and E-3, a TN-1 worker may be
paid on a 1099 as an Independent Contractor if the agreement with the US employer so specifies, but a TN-1 may not freelance or be self-employed in the
US. This category allows much less flexibility in terms of the job: the offered job must fit squarely into one of the 64 professional occupations
listed in the treaty. TN-1 status is available in increments of one to three years, depending on the explicit terms offered by the employer, and is
renewable. Canadian citizens are visa-exempt, and may apply at a border post or pre-flight inspection with their original educational credentials,
resume and letters from past employers for any job requiring prior experience, and offer letter from the US employer. Mexican citizens must apply for a
machine-readable TN-1 visa, and bring their documents to a visa interview at a US Embassy or Consulate.
March 10, 2015
Employers - especially small companies and those new to the world of work visas - often assume that obtaining a work-authorized visa status is the responsibility of the foreign worker. It isn't. Any work visa petition to U.S. Citizenship & Immigration Services ("USCIS") is by definition a request made by the employer for permission to employ a named foreign worker in a particular job for a specified period of time. Foreign workers are often anxious to oblige, in order to secure a firm job offer and the promise of visa sponsorship, and they may offer to cover the costs of H-1B visa sponsorship to the sponsoring employer, by payment up front to the attorney, through reimbursement to the employer, via salary deductions over time, or indirectly, through payments made to the employer by a third party. Both federal agencies overseeing the H-1B program view any such payments or deductions as illegal, and each may take agency-specific corrective actions.
The U.S. Department of Labor ("USDOL") views payment by the sponsored worker of any legal fees or government filing fees associated with an H-1B petition as an illegal assumption of costs
which are the responsibility of the employer under the labor regulations. In an enforcement action, USDOL will subtract any such payments from the amounts actually paid to the worker when determining whether the employer has met its obligation under the Labor Condition Application ("LCA") to pay the "actual wage" promised in the LCA. Thus, an investigation into LCA compliance may result in a finding that the employer has violated its wage obligations. Depending on the number and severity of violations, and the perceived degree of the employer's disregard for the rules, an LCA investigation by the USDOL Wage & Hour Division which reveals payment of H-1B costs by the sponsored worker(s) may result in fines to the employer, and/or debarment from the H-1B program. The USDOL also views early termination penalties paid by the worker, sometimes called "clawback" agreements, as equally unlawful deductions from the actual wage owed to an H-1B worker.
U.S. Citizenship and Immigration Services ("USCIS") takes an equally dim view of any payments by the worker for H-1B petition costs, regarding them explicitly as an indicator of fraud, i.e., as an improper inducement for the employer to provide visa sponsorship. With the exception of the H-1B filing fee for training of U.S. workers, there is no other filing fee that the employer is actually required by law to pay, nor is there support for this definition of fraud in the USCIS regulations, and it is at odds with the practical reality: the foreign worker is just trying to bring the cost of a prospective hire closer to the employer's cost of hiring a similarly-qualified person who does not need visa sponsorship. When USCIS conducts a site visit of an H-1B employer - which they may do either while a petition is pending, or at any time thereafter during the petition validity period, after it has been approved - the USCIS investigator will customarily ask to see payroll records for the H-1B worker, and may independently contact the worker directly to ask if he or she paid any of the H-1B petition costs. Site visits are now occurring in roughly 30% of all petitions, and the Service aims to increase that percentage. If any of the parties contacted are unresponsive, and the site visit is inconclusive, USCIS may issue a Request for Evidence, Notice of Intent to Deny, or Notice of Intent to Revoke. One item of proof commonly demanded in such notices is a pair of sworn statements, one each from the employer and the sponsored worker, affirming that no such payments have been made or promised by the worker, nor received by the employer, including any payroll deductions for the purpose of reimbursing H-1B petition costs.
February 24, 2015
At long last, USCIS has published a final rule implementing the ability of certain H-4 spouses to apply for work authorization. It will go into effect on
May 26, 2015, more than a year after the initial proposed rule came out.
It covers those individuals present in the U.S. under H-4 visa status whose H-1B spouse is the beneficiary of an approved Form I-140 immigrant visa
petition by a U.S. employer, or an approved extension of H-1B status after the 6th year, under the lengthy-adjudications provisions of AC21 (the American
Competitiveness in the 21st Century Act).
In order to permit the H-4 spouse to file a Form I-765 application for Employment Authorization under this new rule, the H-1B and H-4 spouses must still be
married to each other, present in the United States, and maintaining valid visa status.
Break out the confetti!
December 16, 2014
There are a number of concerns in play that must be considered when answering this question. IF you are still a full-time employee in good standing at the
H1B employer, and you have a valid H1B visa stamp, or can apply for a new one on a short trip abroad without a harrowing, uncertain and lengthy procedure,
then it is preferable to use the H1B visa for travel.
The first reason for this is that under the H1B, you will be re-admitted in valid non-immigrant visa status, which keeps you in status regardless of the
I-485 application. The second reason is that under the regulations, you may travel on your valid H1B visa as soon as the I-485 receipt notice arrives,
instead of having to wait months for the approval of ancillary benefits. Also, this will usually avoid having to go to Secondary Inspection at the airport
upon your return. However, some H1B workers are subjected to extraordinary levels of scrutiny and indeed bias at some airports, particularly information
technology professionals working in a consultancy, so the risks of traveling on the H1B visa should be discussed with counsel before you go.
While travel on Advance Parole is possible as soon as you receive the combined EAD/Advance Parole card from USCIS, and using it for travel is necessary
when you are no longer working for the H1B employer, know that whenever you present an Advance Parole travel document to U.S. Customs & Border
Protection, you will always have to go through Secondary Inspection. In Secondary, the Customs & Border Protection inspectors may start with a
presumption that you are inadmissible because of the Advance Parole, and work backwards from there – which means entry coming back to the U.S. will almost
always take longer with an Advance Parole than with the H1B visa.
Once you are admitted as a Parolee:
A. You’re no longer in valid H1B non-immigrant work visa status.
B. In order to just stay on payroll at your employer, you will have to present the EAD card and execute a new I-9 form.
C. You will no longer have access to H1B portability, should you wish to change jobs abruptly.
November 25, 2014
The first important thing to know about the immigration relief announced by President Obama on November 20, 2014, is that it's not an "amnesty." Unlike
President Reagan's amnesty in 1986, the recent Executive Action does not
create a new basis for residence that will legalize several million people who currently have no status, it only offers new temporary forms of relief from
deportation or removal, and temporary work authorization, for limited classes of people. The second thing to know is, no one can apply right away.
None of the immigration initiatives announced as a part of the President's Executive Action are in place yet, nor will any of them be in place before the
end of calendar 2014. Don't pay anyone to file an application for you for one of the new forms of relief included in that announcement until USCIS
publishes new forms, and announces the new application procedures and their effective dates. The
agency needs time to update, revise and publish new forms, establish rules for the supporting documentation, set fees and filing procedures for the new
application types, and allocate and train staff to review those new types of applications, before those processes go live.
Some of the immigration initiatives mentioned, such as measures to ease employment-based immigrant quota backlogs and enhance "portability" for foreign
workers, do not even have anticipated timelines yet. The most urgent benefits for some of those currently without status do have projected timelines, but
they will not be in place until the spring of 2015.
Specifically, USCIS expects an application process for the expanded version of DACA, Deferred Action for Childhood Arrivals, to be in place about 90 days
from the announcement, i.e. after February 19, 2015. This new expanded DACA benefit covers those who arrived in the United States before age 16, and have
resided continuously in the US since January 1, 2010.
USCIS expects to have an application process for the new DAPA benefit, Deferred Action for Parental Accountability, in place about 180 days from the
announcement, i.e. after May 19, 2015. The DAPA benefit covers parents of a US citizen or permanent resident child born on or before November 20, 2014, and
have resided continuously in the US since January 1, 2010.
In the meantime, people who may qualify for immigration relief who are awaiting the publication of specific filing procedures may want to consult with a pro bono or low-cost legal service provider, a qualified immigration attorney,
or an accredited BIA representative, to ask basic questions about eligibility, and about gathering documentary evidence that will be needed to prove
identity, qualifying relationships, and proof of continuous residence in the United States.
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