Year: 2015

September 15, 2015

Together, U.S. Citizenship & Immigration Services and the Department of State have announced revised procedures for determining immigrant visa availability, per a press release from USCIS. The new two-track system allocates one set of dates showing applicants whose priority date is Current-To-File, and a separate set of dates for already-pending applicants whose priority date is Current-for-Final-Approval.

The new bifurcated system can be seen in the upcoming October Visa Bulletin, which provides two charts each for Family-Based and Employment-Based applicants. If you are not certain which chart applies, the Department of State provides a handy Priority Date Checker.

This new system for allocating immigrant visa numbers will allow more people to file for adjustment of status or immigrant visas sooner. For adjustment of status applicants in the United States, this will mean they and their dependents can get unrestricted work authorization sooner. However, it may mean longer wait times for final green card approval, especially for those whose I-485 adjustment of status applications are already pending.

*In less than a month, disagreement between the Department of State and USCIS reached a point where the Visa Bulletin now refers readers to the other agency’s website to tell which chart they may use to see if they will be eligible to apply for adjustment of status. Each month, the Visa Bulletin now reads “Visit http://www.uscis.gov/visabulletininfo for information on whether USCIS has determined that this chart can be used…this month for filing applications for adjustment of status with USCIS.” Due to persistent processing backlogs, USCIS insists that employment-based applicants must use the “Final Action Dates” chart to determine eligibility to file Form I-485.

August 5, 2015

All H-1B workers and their U.S employers need to know of a major policy shift in effect: changes in worksite are now deemed to be a change in material terms of the offered employment, and mandate filing of an amended petition with USCIS whenever a new LCA is required. This policy hits consultancies and workers placed at third-party client sites the hardest, but ultimately it affects every H-1B worker and their employers.

On April 9, 2015, the USCIS Administrative Appeals Office handed down a decision in Matter of Simeio Solutions, opining that a change in the place of employment is a material change. For H-1B workers relocated to new worksites prior to the date of the decision on April 9, USCIS has stated that it does not plan to challenge these with Requests for Evidence, or Notices of Intent to Deny or Revoke.

In preliminary guidance, USCIS gave employers who had moved H-1B workers after April 9, until August 19 to file amended petitions with USCIS, but then on July 21, 2015, the Service released a policy memorandum extending the filing deadline by five months. Now, any US employer that has moved H-1B workers to new worksite addresses after the decision on April 9, 2015, and before August 19, 2015, has until January 16, 2016 to file amended H-1B petitions for those workers.

For any H-1B workers relocated to new worksites outside the original city and state on or after August 19, 2015, the employer must file an amended petition before the move takes place. Worksite address changes within the same “geographic area” (i.e., Metropolitan Statistical Area) still require re-posting the original LCA at the new worksite address before the H-1B employee starts to work there.

However, even employers who relocated or reassigned H-1B workers before the Simeio decision must take note that they are not home free. Even address changes within the original city and state may not be exempt from scrutiny for good faith. The Service retains discretion to challenge relocations with Notices of Intent to Revoke in situations involving a worksite address change that took place prior to April 9, 2015. For such discretionary challenges, USCIS will probably look to whether the approved H-1B petition involved placement of the worker at undisclosed worksites, regardless of whether those sites belong to third-party clients, and to the employer’s initial compliance and avoidance of misrepresentation, i.e., whether the H-1B worker ever actually worked at the address(es) listed in the initial LCA and approved H-1B petition.

The Simeio case involved an IT consultancy where the employer’s assignment of the H-1B employee to client sites was not disclosed in the LCA or the petition. The employer claimed to offer full-time work only onsite at their own premises, but in fact assigned the worker immediately to work at a client site, then in addition, two months after the I-129 petition was filed, the employer’s office at the address listed in the LCA and I-129 petition shut down and moved to a residential address. The H-1B worker was never employed at the address listed in the LCA and H-1B petition.

For over two decades, an H-1B approval explicitly covered all possible work locations within a given Metropolitan Statistical Area, which is the specific meaning of the “geographic location” of the worksite under the labor regulations governing the H-1B program. The Labor Condition Application listed worksites only by city and state, which was sufficient to identify the applicable prevailing wage. The LCA online system and an older version of the form asking for only city and state as worksite location remained in use until June 30, 2009, in order to give users time to get used to the new Form ETA 9035 and to set up user accounts on the Department of Labor’s iCert Portal. After June 30, 2009, use of the new ETA 9035 Labor Condition Application form was mandatory, and the first version of Form ETA 9035 identified up to three worksites by specific street addresses.

The threat of USCIS re-characterizing an address change as a material term of employment, thus requiring amended petitions for any changes in the worksite or employer address, has loomed on the horizon ever since the Labor Condition Application form was revised to identify multiple worksites by street address. The Department of Labor’s H1B FAQs published on 2/17/2011 clarified that a worker could start work at a new place of employment as defined by 20 CFR 655.715 and not contemplated at the time of initial filing, based on a posted notice of wages and work conditions by the employer at the new worksite, and filing of a new LCA. There have been quite a few Service memoranda over the years clarifying when an amended H-1B petition was and was not required, but the tacit implications of the controlling labor regulation, and the possibility of a narrowing interpretation by USCIS, changed dramatically once the LCA form specified street addresses for the intended work location.

USCIS has been through previous spasms of trying to tie H-1B workers definitively to worksites, but none of it stuck until 2015. Now, reassignment of H-1B professionals to any new or additional worksites not listed in the original LCA and petition, up to and including a move of the company’s main headquarters to a new office in the next town down the road, may be deemed a material change of employment terms. A new work address in a new city entails filing an amended I-129 petition with USCIS. This particular turkey has finally come home to roost.

July 30, 2015

Based on public outcry from the arts community and the immigration bar, US Citizenship & Immigration Services sought to engage stakeholders in a dialogue, in order to understand why their policy memorandum of November 2009 regarding agents serving as O-1 petitioners was not well received, and why their ongoing, ever-narrower “clarifications” reinterpreting the regulations proved so unpopular with the industries that rely on the O-1 visa. In short, that memo substantively changed the interpretation of existing law and regulations, and it added new requirements not supported by regulation, even though the regulations themselves have not been amended nor revised since adoption of the O-1 Final Rule in 1994. As a consequence, the landscape for O-1 visa sponsorship changed dramatically.

An opportunity for stakeholder feedback on Agent-as-Petitioner issues was provided by the USCIS Office of Public Engagement in a stakeholder teleconference on March 24th, 2011. Some questions were answered, many remained unanswered. Speakers intimated that forthcoming answers in an as-yet unpublished Executive Summary might be even more unpopular and could further destabilize industries already facing serious economic challenges. The most alarming reinterpretation suggested was that USCIS might start to consider O-1 performers to have violated status if they accept any new engagements with any “employer” not named in the original petition, even though the regulation at 8 CFR 214.2(o)(2)(iv)(D) explicitly says, “In the case of a petition filed for an artist or entertainer, a petitioner may add additional performances or engagements during the validity period of the petition without filing an amended petition.” If USCIS pursues the suggested interpretation, it will upset almost two decades of settled practice, and would render nearly every O-1 actor, dancer, musician and singer out of status when they seek to extend stay, renew their visa or file for a change or adjustment of status.

The crux of the difficulty is the Service’s insistence on trying to create formulaic and rigid rules for a visa classification whose primary usefulness is its flexibility. The O-1 has highly subjective legal standards, which have allowed individual adjudicators to apply their real-world knowledge and common sense. The consistency so dearly cherished and sought after by agency hobgoblins has led to “clarifications” and “interpretations” that turn long-established agency practice on its head, destroying well-settled expectations in the professional communities that rely heavily on the O-1.

Briefly, an “agent” in the O-1 visa context may be a US entity formally in business as an agent or business manager, e.g. providing artist representation; or it may be one among several prospective US employers/presenters/entities that wish to engage the services of the beneficiary (“Agent performing the function of an employer”), or it may be an unrelated party in the US that has a tax identification number and is authorized by the employers/presenters/venues/entities that wish to engage the services of the beneficiary to serve as their agent but solely for the limited purpose of filing a visa petition to facilitate these engagements and authorize the employment on the offered itinerary.

As indicated by the preceding paragraph, many problems in USCIS attempts to achieve consistency in interpreting the O-1 regulations stem from use of the words “employer” or “employment.” Those words often do not accurately characterize how work is done in fields of endeavor for which the O-1 visa is used. Although they get paid, most professional athletes in non-team solo sports, most fine artists and most performing artists do not usually work in an employer-employee relationship. This is not rare, arcane knowledge: many Americans know when they go to the movies that the actors are not salaried employees of the film studio, but get a flat fee per film, or union scale rates for the time worked. When they buy a CD, they know that Lady Gaga is not an employee of the record label. When they watch a pro golf tournament, they know that Tiger Woods doesn’t have a boss. Apparently, USCIS has distanced itself from common sense understanding of how the entertainment, sports and arts industries work, and their adjudicators are being asked to set aside their real-world knowledge to apply formulaic standards of “employment” to industries where an employer-employee relationship is not the norm, and never has been. This is particularly sad and disturbing because the fact that there are many types of work in the arts and entertainment that do not fit the traditional employer-employee model was a foundational reason for creation of the O and P visa categories in 1991.

The Service’s attempts to characterize all working relationships as “employment” have done considerable damage to the O-1 visa category already, and appear likely to do more, particularly in the context of O-1 petitions by an agent.

Requirements for a petition by an agent now include:

1. A written itinerary of confirmed engagements, including dates, addresses, rates of pay, etc.
2. Contracts between employers/presenters and the foreign beneficiary, where such contracts exist; written summary of the oral agreement where there is no contract;
3. Written consent for the agent to serve as visa petitioner from all other employers/presenters listed on the itinerary;*
4. Contract or summary of oral agreement between agent & foreign beneficiary.

Requirements 1, 2 and 4 are contained in the O-1 regulations as they have existed since the Final Rule published in 1994, although interpretations of the regulations have narrowed considerably over the years. However, the written consent requirement is not authorized by regulation or statute (lawyers call this ultra vires), and it creates another burdensome addition to the growing ream of paperwork required for artist sponsorship. Form I-129, which was 4 pages until early 2011, has since mushroomed to 8 pages; the O/P Supplement, previously only 1 page, is now 3 pages. The thinking behind this agent-consent requirement is foggy at best. When the agent-petitioner already has to provide the contracts for each engagement, what is gained by also requiring a separate document from each presenter consenting to the agent’s service as visa petitioner? Does USCIS really think the agent could otherwise have obtained the contract details by stealth, without the consent and cooperation of each presenter, or that the agent is forcing the O-1 artist to accept secret additional engagements against his or her will?

Neither O-1 regulations nor the November 2009 policy memo require the contracts between employers and beneficiary to be signed – a good thing, as that would effectively kill off the possibility of any foreign artists touring in the US, since lead time for signed contracts in the performing arts is extremely short. Indeed, so long as all the material terms of agreement are spelled out at least roughly in a written summary – type of work to be performed, where and when, for what compensation – and if there is as yet no formal written contract, the version of the agreement furnished with a visa petition may be a brief summary of oral agreement laying out all these terms, but it need not be not signed by either party.

However, an O-1 petitioner must also obtain peer advisory opinions from the relevant labor unions in any field where there is one, and this covers all the performing arts, and from a U.S. peer organization where there is no union. The number of unions that must be consulted depends on the type(s) of work offered in the US. Some unions have more stringent requirements than USCIS. Notably, O-1 petitions involving aliens of extraordinary achievement in film and television must always include at least two advisory opinions – one from a labor union, such as the Screen Actors Guild/ American Federation of Television & Radio Artists, and one from the management organization, the Alliance of Motion Picture & Television Producers. AMPTP requires all contracts or deal memos to be signed, effectively ratcheting up the documentation standard, again creating an ultra vires requirement not supported by the law.

With regard to the itinerary and supporting contracts, for a while (in late 2009 and early 2010) USCIS automatically sent Requests for Evidence in any O-1 petition where there was a gap in the proffered itinerary of 45 days or more. That practice and policy was formally withdrawn per a USCIS memorandum of July 2010, but adjudicators retain broad discretion to request additional evidence in support of the petition validity dates requested. Their discretion is now being used not only to inquire about long gaps in the itinerary, or where the end date of the period requested is any later than the end date of the last engagement supported by the documentation, but also to challenge the very nature of a proposed tour itinerary as a single “event.” Adjudicators apparently now have discretion to truncate the requested validity period at some arbitrary point in mid-itinerary chosen by the adjudicator, not by the agent or tour manager. What one hand gives, the other takes away.

Note: due to a subsequent USCIS draft interim policy memorandum on the role of agents as O and P petitioners (PM-602-0115) dated June 9, 2015, published on July 16, 2015, which purports to supercede the 2009 policy memo, this post has been updated to reflect contents of the 2015 memo, as it apparently reflects current Service practice even though a final version was never promulgated, so that memo does not formally represent agency policy. To date, USCIS has yet to harmonize these memoranda with existing law and regulations, and has yet to publish a chapter on O & P visas in the Online Policy Manual.

 

As of July 2015, the Service’s stated positions about Agents filing as petitioners for O & P visas are as follows:

USCIS recognizes the following types of agent relationships:

1. Agents who the beneficiary’s actual employer must provide-

a) evidence of the employment relationship;
b) a contract or written summary of oral agreement that specifies the offered wages and other terms & conditions of employment (the July 2015 memo uses the term “wages” even though it is not mandated by statute or regulations, and artists are often paid in a myriad of other ways, such as percentage of sales, flat fee or commission);
c) if beneficiary will work in more than one place, an itinerary listing dates and locations of all competitions, performances or events.

2. Agents who are one of the actual employers, filing on behalf of the others, must provide-

a) evidence of the employment relationship;
b) a contract or written summary of oral agreement that specifies the offered wages and other terms & conditions of employment;
c) contracts between the other employers on the itinerary and the beneficiary;
d) an itinerary listing dates & locations of all competitions, performances or events at which the beneficiary will perform services for the petitioner and for all the other listed employers; and
e) documents showing that the petitioner is authorized to act as an agent for the whole series of events, competitions or performances, which must be signed by all of the other employers.

3. Agents performing the function of an employer (i.e. where the petitioning agent itself is not an employer, but exercises some form of control or exclusivity over the beneficiary’s services in the United States) must provide-

a) a contract or written summary of oral agreement that specifies the offered wages and other terms & conditions of employment, which explains the relationship between petitioner & beneficiary, and how the beneficiary will be paid for services;

b) if the agent is performing the function of an employer but is not an employer, the agent must provide a definite itinerary of the employment and services planned for the time period requested. The itinerary does not need to include every engagement when and where services will be provided, as long as the petition identifies the entity outside the agent that will use the beneficiary’s services and provide payment.

4. Agents acting as representatives for both the beneficiary and a series of employers or entities requiring the beneficiary’s services must provide-
a) a contract or summary of oral agreement between the agent and beneficiary that  specifies wages offered and other terms & conditions of employment;
b) for O-1 petitions, contracts between other employers and the beneficiary;
c) for P-1 & P-3 petitions, USCIS may request contracts between the employers and the beneficiary(ies) in questionable cases;
d) an itinerary listing the names and addresses of employers and the dates and address locations where services will be provided;
e) documentation that the agent is “in business as an agent”, i.e. specifically authorized to act as an agent for other employers.

5. Agents petitioning on behalf of a foreign employer must provide-

a) a copy of a contract or written summary of oral agreement between the foreign employer and the beneficiary;
b) an explanation of the nature of the events or activities, beginning & end dates, and a copy of the itinerary listing the US dates and address locations where services will be performed;
c) evidence that the agent is authorized to represent the foreign employer for the purpose of filing the O or P petition.

Since the language of the P regulations differs from that of the O-1 regulations, the 2015 draft memo says that US “sponsoring organizations” that are not direct employers of P beneficiaries must provide evidence that they are guaranteeing the terms & conditions of employment offered to the beneficiaries.

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 U.S. 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 un-abandoned residence abroad to which they intend to return. These visa categories are for salaried jobs with a U.S. 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 U.S. 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 U.S. employer must agree to pay the local prevailing wage for that occupation, and must file a Labor Condition Application with the U.S. 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 U.S. 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, although Embassies may interpret the requirement of continued nonimmigrant intent quite strictly. There is no “portability” between different H-1B1 jobs, or from H-1B1 to H-1B.

While having Permanent Resident status in Singapore or Chile does not confer eligibility for H-1B1 status, third-country nationals (i.e., people who are not nationals or citizens of Singapore or Chile) who are married to or minor children of H-1B1 professionals are eligible for H-4 status as their dependents.

E-3: Australia

The E-3 is also for offered work with a U.S. 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 U.S. 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 U.S. 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 U.S. 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 U.S. employer so specifies, but a TN-1 may not freelance or be self-employed in the U.S.

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 U.S. employer. Mexican citizens must apply for a machine-readable TN-1 visa, and bring their documents to a visa interview at a U.S. Embassy or Consulate.

**UPDATE: 01/15/2016– USCIS published a new final rule amending the work authorization regulations. H-1B1, E-3 and CW-1 (temporary workers from the Commonwealth of the Northern Mariana Islands) have all been added to the nonimmigrant classes deemed “work-authorized incident to status,” and all three have been added to the regulation that automatically extends work authorization with the same employer for an additional 240 days upon timely filing of a petition to USCIS for extension of stay in the same job. This rule takes effect on February 16, 2016. However, Premium processing still remains unavailable for petitions to extend stay or change employers for H-1B1, E-3 and CW-1 professionals.

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!