Tag: H-1B Visas

January 25, 2017

“Houseguests are like fish, they start to stink up the place after three days.” This aphorism, commonly attributed to Benjamin Franklin, is often quoted as a universal benchmark of freshness.

Foreign professional workers in H-1B visa status have good reason to be concerned with the freshness of their last paystubs, when contemplating the end of the job that serves as the basis for their visa status, regardless of whether they quit or are terminated. In an era of economic uncertainty, where companies in any industry may suffer waves of layoffs, it is prudent for foreign workers to think ahead about what would happen if the H-1B job ended. The first question on their minds is usually, “How long do I have?”

Paystubs do not start to stink after a mere three days, but how long they remain fresh depends on the circumstances, and it is highly subjective. USCIS briefly embraced a “zero tolerance” policy on this issue, but then thought better of it… presumably based on existing provisions of law, and the realities of timing interactions between a worker, a prospective new employer, and that new employer’s law firm. After all, the whole point of H-1B portability is to promote freer movement of labor.

There are multiple sources of possible administrative delay: the worker’s education and visa status documents are assembled by a hiring manager or human resources specialist at the prospective employer, then forwarded to counsel, then draft Labor Condition Application documents are prepared by counsel and sent to the employer, notices are posted by the employer and an LCA is filed with the Department of Labor, then H-1B petition documents are sent to the employer, reviewed & signed, returned to counsel and filed with USCIS. Given those required steps, especially in a corporate setting where any drafts provided by outside immigration counsel may also be reviewed by in-house counsel before they can be signed, the worker’s paystubs that were a day old when first supplied to the prospective employer could be several weeks to more than a month old by the time a new H-1B petition is filed.

An H-1B professional worker is technically “out of status” as soon as the job ends – devaluing any post-termination paystubs marked “Severance.” However, such a worker remains in the more hazily-defined “Period of stay authorized by the Attorney General” so long as the expiration date on his or her I-94 entry/departure card has not been reached. Once that I-94 card expires, the worker has overstayed, and is not merely “out of status” but also “unlawfully present.”

Finding a new job – and a willing new H-1B visa sponsor – can be especially difficult to plan for when job termination is sudden, involuntary, and due to events utterly beyond the worker’s control, such as a layoff, or if the current employer goes out of business. Such events grow more frequent in an unstable economy, so an H-1B worker should be aware of the landscape.

A prudent H-1B worker may see the writing on the wall before their job or their employer’s business comes to an abrupt end, and may look proactively to transfer to another employer while they are still working for the approved H-1B employer. However, even workers proactively planning for change may face a concern beyond their control: what happens if the existing H-1B employer is merged into or acquired by another company, so their paystubs no longer reflect the name on their H-1B visa or approval notice? Failure to file timely amended petitions for affected H-1B workers is not the fault of the workers; it is either a non-material change, or a violation by the employing company.

Nonetheless, a petition seeking to take advantage of H-1B portability may face a challenge from USCIS and the worker could potentially be deemed out of status if all the worker can produce for the new employer is recent paystubs that do not match the company name on the worker’s most current petition approval notice, unless they can also produce a published press release or news article detailing the merger or acquisition.

The landscape for H-1B workers between jobs changed dramatically with publication of the High Skilled Worker Rule, which went into effect on January 17, 2017. Now there is a formal, officially-recognized 10-day grace period tacked on at the beginning and at the end of petition validity periods, and a 60-day grace period has been created for H-1B workers whose employment is involuntarily terminated by the employer before the ending validity date of the approved H-1B petition. Note that the 60-day grace period does not apply where the worker voluntarily leaves his or her approved employment, so there are open questions remaining about how USCIS will interpret maintenance of status and approveability of subsequent H-1B portability petitions where the worker’s departure was voluntary.

In sum, the timing concerns involved in making the leap to a new H-1B employer will always hinge on case-specific details that should be discussed with counsel at the earliest opportunity, but it does not have to be a mystery.

 

**Last updated Jan.25, 2017

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.

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.

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.