New I-485 Supplement J Required for Most Employment-Based​ I-485 Filings

Screen Shot 2017-01-19 at 3.51.31 PM.pngUSCIS has received a new form – I-485 Supplement J – for those filing an I-485 (or to update an already filed I-485).  The new form is required for ALL persons filing an I-485 based upon an approved I-140 or a pending I-140 EXCEPT those filing a National Interest Waiver application or an Extraordinary Ability application (both of which are self-sponsored).  For those filing the I-485 WITH the I-140, the form is not required as you are already including a current letter of employment and attestations by the employer with the I-140 itself.

It is important to note that this form should also be used to update USCIS when you have a pending I-485 and you are using the portability provisions to move to another position that is the same or similar as the last position.  There is no fee for the form.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

 

Final Rule Published by USCIS – Clarifies H-1B Cap Exemptions, Grace Periods for Non-Immigrant Visas, Retention of Priority Dates, and More

USCIS has just issued its final rule to  amend and add to its regulations regarding highly skilled worker.  These are the same changes I discussed about 1 year ago when USCIS issued a draft rule on these issues.  They have now been adopted.  Below is a summary of the provisions of this new rule.  Please note the effective date of the new rules is January 17, 2017.

I have divided the summary into two parts: those provisions that I feel make major changes to current law and those provisions that, while they do make changes, the changes are not as major.

First, lets look at the major revisions, the ones that will make major changes to current practices:

H-1B Cap Exemptions: USCIS clarified and codified its definition for two cap-exemptions. First, it defined who qualifies for a cap-exemption when they are working “at” a cap exempt location even though the employer for who they work is not cap-exempt. The new regulation states that the H-1B is cap exempt if the employee is performing a majority of their duties at the cap-exempt location and such job duties directly and predominately further an essential purpose, mission, objectives or functions of the cap-exempt organization.

Second, USCIS clarified its definition of “related or affiliated nonprofit entity” plus added one additional ground (currently only institutions that are connected or affiliated with an institute of higher education through shared ownership, that are operated by an institute of higher education, or that are attached to an institute of higher education as a member, branch, cooperative or subsidiary). The new definition also includes entities that have entered into a formal written affiliation agreements with institutes of higher education. The agreement must establish an active working relationship with the institution of higher education for the purposes of research or education, and it must establish that one of their primary purposes is to directly contribute to the research or education mission of the institution of higher education.

Revocation of Approved I-140s: USCIS amended its regulations so that I-140 applications that have been approved for 180 days or more will no longer be subject to automatic revocation because the employer requests it, or because the employer goes out of business. Those I-140s will remain valid for priority date retention and for extending H-1Bs past the six year maximum. However, unless the I-485 was filed and remained pending for at least 180 days before the withdrawal request or the employer went out of business, the I-140 cannot be used to file an I-485 or have it approved as the underlying offer of employment is no longer valid. If the I-485 had already been filed and remained pending for 180 days prior to the withdrawal request or the company going out of business, the applicant can still use the I-140 for 204(j) portability purposes (showing an offer of employment that is in the same or similar category). If that is not possible, a new I-140 would have to be filed in order to obtain an adjustment of status.

Retention of Priority Dates: As stated above, USCIS changed its regulations relating to retaining the priority date of an I-140. For those applications that require a labor certification, the filing date of the labor certification (or the I-140 in the case of Schedule A case) is the priority date for those I-140s. USCIS would clarify that the priority date for all other I-140s is the date it is properly filed with USCIS. Furthermore, USCIS would clarify that the priority date could be retained on any I-140 except if the I-140 is denied (or otherwise not approved), or if the approval is revoked based upon fraud/misrepresentation. If the employer subsequently withdraws the application or if the employer goes out of business, the priority date will be retained. This is true regardless of how long ago the I-140 was approved (i.e. it applies if it was approved yesterday or 2 years ago). In other words, the 180 day rule above does NOT apply to priority date retention.

Non-Immigrant Grace Periods: USCIS already has in place a provision that allows for a person entering the US on an H-1B to come up to 10 days before the start date, and to get an additional 10 days after the expiration of their H-1B (it is important to remember that currently, these extra 10 day periods MUST be included on the I-94 when you enter, they are not automatic). This will be extended to L-1, E-1, E-2, E-3 and TN visa statuses as well. In addition, these statuses would also receive a one-time, up to 60 day grace period if the employment is terminated prior to the end date on the I-94. The actual grace period time would be the SHORTER of 60 days, or the amount of time left until the expiration of the current I-94. During this period the person would still be considered in status and could file a new H-1B, L, E or TN applications (as listed above) or an application to change status. The above grace periods are also extended to dependent family members.

Eligibility for EAD in Compelling Circumstances: USCIS amended its regulations to allow EAD issuance to certain non-immigrants (those who have an approved I-140 and are in the US in E-3, H-1B, H-1B1, O-1 or L-1 status) if there exists compelling circumstances. The EAD would be valid for 1 year, and could be renewed as long as the compelling circumstances remained, and the priority date is within 1 year of the current cut-off date. In addition, if the person has a priority date that has already passed (so there is an immigrant visa available) and is more than 1 year beyond the posted date, they would be ineligible for either an initial or renewed EAD. In terms of defining compelling circumstances, USCIS will not do so. They do give certain examples, however. The four examples give are: Serious illness or disability that significantly changes employment circumstances (has to move to a new area for treatment, etc.), employer retaliation, other material harm to worker (such as on an H-1B in a industry specific job, company goes out of business, industry does not exist in home country, so lack of job would cause hardship), or Significant Disruption to Employer.

H-1B licensing Requirements: USCIS amended the regulation to reflect that, those applying for an H-1B in an occupation that requires licensing will be able to get the H-1B approved (for up to 1 year) prior to receiving the license if they can show that they have the application pending, or the application has been denied because they do not have a social security number or employment authorization and that the ONLY reason they cannot get the license is because they cannot get a social security number and/or they do not have employment authorization. USCIS will also allow approval in cases where the applicant does not have a license if the state in which they are practicing allows such persons to work under the supervision of a licensed practitioner. However, USCIS will review these cases to ensure that the duties will still be specialty in nature.

EAD Processing: USCIS is making two changes here. First, they will allow automatic extension of EADs (up to 180 days) and work authorization incident to status in cases where the applicant is seeking renewal of their EAD, files the application prior to the expiration of the old EAD, files the application in the same category in which it was initially granted AND either they continue to be employment authorized incident to status beyond the expiration period or they are applying for renewal in a category that does not first require adjudication of an underlying application. In addition, for I-9 purposes, they would amend the regulations to show that an expired EAD and an I-797 receipt notice would be sufficient to show employment eligibility. USCIS states that this would apply to those seeking to renew their EAD based upon: refugee or asylum status; a grant TPS; a pending I-485, as well as additional categories. It specifically does NOT apply to H-4s applying for work authorization – as their grant depends upon the maintenance of H-1B status of the underlying H-1B Principal. The second proposal would eliminate the 90 day processing period for EADs now required in the regulations for I-485 applicants.

Next are the provisions that, while important, do not represent as much of a change to existing policy.

3 and 1 year extensions of H-1B:  First, USCIS codified a couple of long standing USCIS policies in relation to AC21 and the granting of additional H-1B time past the six year maximum. For the three year renewals (allowed to those with an approved I-140 who are unable to file an I-485 based upon visa backlogs) USCIS is codifying that the three year extension can be renewed in three year increments for as long as the visa backlog exists. They are also codifying that the extension is available to those both in the US and outside the US, and to those currently in H-1B status and those not in H-1B status but who previously held H-1B status.

They are also codifying that any employer (not just the one who filed the I-140) can request the extension and that the extension is ONLY available to the principle beneficiary of the I-140, not dependents.  For the 1 year renewals, available to those whose green card process has been ongoing for 1 year or more, they are codifying similar provisions (available to those currently in the US and those outside the US and those in and not in H-1B status at the time the renewal is filed and it is only available to principle beneficiary).  In addition, they would codify that the denial or revocation of an underlying petition is not considered a final action (thus stopping the ability to get the 1 year renewals) until the time for appeal has elapsed, or, if an appeal is filed, the appeal is finalized – but an expired PERM would not be grounds to get an extension.

Lastly, a beneficiary must seek to get their permanent residence within 1 year of the visa becoming available or the extension is not longer available to them.

Job Portability:  USCIS codified that, once the I-140 is approved and the I-485 has been pending for at least six months, the adjustment of status can be approved if the underlying employer continues their sponsorship OR if you provide a new letter of employment from a new employer (or through self-employment) in a same or similar occupation.

In addition they are extending this to cases where the old employer has gone out of business.  USCIS will also define “same” and “similar” in a manner consistent with their latest memo on this issue.

H-1B Portability:  USCIS codified that those in H-1B status can begin working for a new employer upon the filing of the new H-1B application, that such ability is ONLY available to those in the US in H-1B status, and that you can file subsequent H-1B portability applications and begin working for those employers prior to approval of  the other underlying H-1B application.

Counting H-1B time:  USCIS codified the ability to recapture time outside the US. Anytime spent outside the US, regardless of the reason or the amount of time, can be recaptured at the end of the six year H-1B period. The burden of proof is on the applicant to show that they were out of the US during that period (passport stamps, etc.).

Whistleblower Protections: USCIS instituted certain protections for whistleblowers (those who alert the government to certain to illegal activities of their employers).

 

Please do let me know if you have any specific questions.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

H-1B/PERM Update – Who Can Pay Fees?

punitive-damagesRecently, an Administrative Law Judge ruled against the Department of Labor (DOL) in a very interesting case allowing the employer to recoup fees from an employee for the H-1B visa process.  Before going into the specifics of the case, it is important to understand what the DOL regulations are in this area.

The DOL, in its regulations governing both the PERM and H-1B process, has stated that the employer must pay the employee the higher of the actual wage for the position at the employer OR the prevailing wage.  The DOL has gone further stating that certain deductions from an employee’s paycheck, while allowable under the law, are not permissible under the prevailing wage laws.  Therefore, if those deductions bring the employee’s salary below the higher of the actual wage or the prevailing wage, then the employer is violating the regulations.  These impermissible deductions include the filing fees and attorney fees (in fact all fees) for the H-1B and PERM processes, as the DOL sees all those fees as the employer’s responsibility.

One other issue in this area is what exactly is the “actual wage”.  It would seem to make sense that it is the wage that the employer is actually paying the employee.  However, the Department of Labor has not interpreted it this way.  Instead, the Department of Labor makes the employer average the wages of all employees in the same OR substantially similar positions (positions that require the same education and skills).  The Department of Labor reasoning is that they do not want the employer to impose a lower wage on a foreigner that a US worker, even if that lower wage is higher than the Prevailing Wage.   This is the formula the DOL mandates for determining what the minimum wage that can be paid to an employee would be.

Now we can discuss the actual case.  The case was Administrator v. Woodmen of the World Insurance Society (10/26/2016).   In the case, the Woodmen of the World Insurance Society (employer) hired an H-1B non-immigrant had them sign a repayment agreement for the attorney and other fees.  This particular employee was let go prior to the end of the H-1B, and the employer deducted the fees from the employee’s final paycheck, which included unused vacation time.  It is important to note that the unused vacation time more than covered the H-1B fees that the employer recouped.  The DOL audited the case (it is unclear if the employee complained (most probable) or it was a random audit) and determined that the money that the employer deducted was an impermissible deduction from the employee’s paycheck.

The DOL made two important findings.  First, the DOL stated that, despite the fact that the employee was paid higher than the prevailing wage and the actual wage (as determined using the formula above), the employer was still liable.  The DOL stated that in such cases the actual wage is actually just the wage paid to the employee.  Therefore ANY impermissible deduction would bring the wage below the actual wage.  The DOL further stated that the payments made to the employee for his unused vacation time in his last paycheck also could not be used to make payments as doing so would put the employee in a worse position than similarly situated US Citizen employees who do have these fees deducted from their paycheck.   However, it is important to note that the DOL said that the fees for premium processing where NOT an impermissible deduction and therefore the employer could deduct those.

The Administrative Law Judge looking at this case only looked at the second argument relating to the vacation time and did NOT rule on what the actual wage was as it was not necessary for the case.  In his ruling, the Judge stated that it IS permissible to make such deductions from unused vacation time as long as the employer makes similar deductions from US Citizen paychecks.  For example, the Judge stated that the employer in the case at bar also deducted tuition that the employer had paid for an employee from such paychecks if the employee did not meet the terms of the repayment plan agreement.  Therefore, according to the Administrative Law Judge, such deduction do NOT affect wages and, since US Citizens are treated similarly, does not put non-immigrants in a worse position than US Citizens.  Once again, it is important to note that the unused vacation time payment more than covered the fees in question (the employee was due about $9000 in unused vacation and the attorney and filing fees were only about $4000).

This is the first time I am aware of, that an employer has been allowed to recoup such costs from an employee and sets out clear parameters for employers who would like to have such repayment agreements to follow.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

Timelines for Prevailing Wage Determinations Now More Than 4 Months

Screen Shot 2016-10-11 at 9.31.54 AM.pngThe DOL recently reported that Prevailing Wage requests for both H-1B and PERM cases are taking about 5 months to process.  For those planning to file an employer sponsored PERM case, this means really advance planning is needed.  Prior to advertising it is important to have the prevailing wage determination, otherwise you may have to re-do the advertising if the determination comes back higher than anticipated.   For this reason we almost always advise our clients to wait for the prevailing wage determination before advertising.

Practically, this means you need to prepare the prevailing wage request (usually about a 2-4 week process), wait for the determination (5 Months), begin advertising and recruitment (2.5 months) and then you can file the PERM and wait for a decision (3-10 Months depending on whether you are audited or not).  In total you are looking at a minimum of about one year for the entire process.   Waiting to begin until your last year of H-1B is simply not possible anymore.  Waiting to begin until your last two years, is still putting things off until to late, considering the PERM road is very rarely without some unforeseen delay.  Really, you should try to begin as soon as possible, just to make sure that should there be any issues, there is sufficient time to redo any steps that need to be redone.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

PERM and Inadvertent Errors

images.jpegThe current labor certification process known as PERM has been around for several years now.  While it was originally touted as being a streamlined, easier way to do the labor certification process that would get rid of backlogs, etc.  it has not turned out that way at all.  Instead, it has become what I would call a mess.  The Department of Labor is no longer interested in just protecting workers, which is what the labor certification process was created to do.  The idea behind the system was to ensure that employers followed a process that was intended to appraise US Workers of the actual job and job requirements and that those US Workers were not scared off from applying, and were given a fair chance at the job opening.  In addition, the process makes sure that those US Citizens are only denied the job for valid, job related reasons.  The Department of Labor, however, has decided that any mistake in paperwork, no matter how minor, should be grounds for a denial whether or not it actually affects whether US workers were adequately appraised of the opportunity and whether or not it means that the employer did or did not follow the correct procedures.  A couple recent cases illustrate this.

The first case (Matter of Karam Kaur Khasriya LLC, 7/14/16) shows that BALCA (the appeals board for denied labor certification cases) does have a sense of irony.  In this case an employer submitted a recruitment report that stated that “no qualified persons applied” and that “there were no resumes to submit” to the DOL.  The DOL officer determined that the statement “no qualified persons applied” could mean that unqualified people applied, and therefore, the employer should have provided those resumes and a complete recruitment report in response to the Audit, which it did not.  Therefore the officer denied the Labor Certification.  In its motion to reconsider, the employer did submit a revised report clearing up the language by saying that “no person applied”.  The DOL Officer stated that the revised report did not overcome the deficiency and upheld the denial

BALCA, in looking at this case, determined that the officer was correct in denying the labor certification initially because its interpretation of the language was reasonable.  In looking at the revised report, BALCA noted that documents submitted in a Motion to Reconsider are not automatically part of the record unless the officer agrees to consider the document.  In this case, BALCA stated, the officer stated that the revised report did not overcome the grounds for denial, therefore, according to BALCA the officer considered the report.  Furthermore, BALCA stated that the officer did not explicitly state that the report would not be accepted, therefore a reasonable interpretation of the language used by the officer was that the report was accepted.  BALCA then went on to find that the revised report clearly showed that no one applied and overcame the grounds for denial, so the case was certified and approved.  BALCA showed that “reasonable” interpretations are a two way streak.

In two other cases, BALCA overturned denials where the advertisements where not exactly what was listed in the Labor Certification application.  In one case the ads listed a wage range, whereas the labor certification application listed one wage.  In the second case, the ad listed 24 months of experience without stating what job titles or areas would suffice for the experience and the labor certification application listed 24 months experience in a particular job area AND, in the alternative, 24 months experience in other job areas.  In both cases BALCA stated that the ads reasonably appraised applicants of the job being offered and did not create an impediment to anyone applying.   Considering that the differences between the ads and the application were  inconsequential at best, it is hard to understand why the case was denied by the Department of Labor to begin with.

The above demonstrates two important principles.  First, the Department of Labor will sometimes deny cases on very spurious and minimal grounds.  It pays to check and double check all paperwork and try to make it all as consistent as possible and to follow the rules.  However, because of the DOL’s tendency to pick on very small issues, there is no way to protect against all possibilities.  This leads to the second principal: Appealing such a denied case can be a good idea in many cases.  While it use to be that BALCA would basically act as a rubber stamp for the DOL (except in some egregious cases), recently (in the past year or two) BALCA  has become much more independent and is now truly carrying out its function of overseeing this process.  BALCA is now infinitely more reasonable in its interpretations and willingness, when it can, to overlook small mistakes as long as the overall process was sound.  Considering the point of the process is to protect US Workers NOT to penalize employers who make inconsequential mistakes, this approach is welcome.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

October 2016 VIsa Bulletin: Forward Movement for All

unknownThe Department of State released the visa bulletin for October 2016 recently. Below is a summary of movement and changes.

Family Based Immigrant Visa Numbers

F1 – Unmarried Sons and Daughters of US Citizens: This category moved forward about 1 week to September 22, 2090 for every country except Mexico (which moved forward 1 week to April 1, 1995 and the Philippines (which moved forward 1 week to August 1, 1995).

F2A – Spouses and children of Permanent Residents: All countries moved forward around 1 month, Mexico moved forward about 3 months to December 1, 2014. And the rest of the World moved forward about 5 weeks to December 22, 2014

F2B – Unmarried Sons and Daughters of Permanent Residents: Most of the world moved forward about 5 weeks to March 15, 2010. Mexico moved forward only 2 weeks to October 1, 1995 and the Philippines moved forward 1 month to January 1, 2006

F3 – Married Sons and Daughters of US Citizens: Most of the world moved forward about 3 weeks to December 22, 2004. Mexico moved forward about 1 week to November 22, 1994 and the Philippines moved forward about 3 weeks to July 8, 1994

F4 – Brothers and Sisters of US Citizens: China moved forward 4 months to May 1, 2003. India jumped just over 1 year to December 1, 2002. Mexico moved forward a couple weeks to May 1, 1997. The Philippines moved forward about 6 weeks to April 15, 1993. The rest of the world moved forward about 1 month to November 1, 2003

Predictions for coming months:

There should be forward movement on all categories in the next several months of about 2-6 weeks.

Employment Based Immigrant Visas

EB-1: As stated previously, this became current for everyone for October.

EB-2: Again, as we stated previously this became current for Worldwide numbers, Mexico and the Philippines. It moved forward to February 15, 2012 for China and to January 15, 2007 for India.

EB-3: Moved forward 1 month for Worldwide and Mexico to June 1, 2016. China jumped forward to January 22, 2013 (putting the EB-3 category ahead of the EB-2 for China). India Moved forward about 1 month to March 1, 2005 and the Philippines moved forward about 5 months to December 1, 2010.

Predictions for the Coming Months:

For EB-2s the Department of State sees China and India moving forward about 3 months (maybe 4 months for India) in the coming months. Worldwide and Mexico should remain current.

For EB-3s, they still feel that for the Worldwide numbers, demand may cause them to backlog (however this did not occur at all last year, and they thought it would then as well), but we will have to see. For China, EB-3 should move forward about 3 months. It will move forward only about 1 week for India and about 3 weeks for the Philippines.

Etsy? Ebay? Am I violating my Immigration Status by using these sites?

Unknown.jpegWe get this, and similar questions, from our clients frequently.  This is a very complex issue and every situation is different.  However, there are some key considerations you should think about.  The key questions are:

  • Are you carrying out the activity for profit?
  • Are you just trying to get rid of excess goods you have in your possession?
  • Are you deriving an income from the activity?
  • Looking at your activities “objectively” would you say you are conducting business or not?

I think that the last point is the most important to keep in mind.  If it feels like you are starting a business, and you are intending to make a profit from your activities and you are consistently selling goods then the chances are USCIS will see it as a business.  As the saying goes – “if it walks like a duck and talks like a duck, it most likely is a duck.”  It is also important to remember that USCIS takes a very liberal view in terms of what constitutes doing business.  This means that they would be more likely to find something is a business than not.  Going back to the saying, all USCIS would need is to see that it walks like a duck, and they would say “it is most likely a duck, unless you can prove to us it is not.”  That being said, selling some goods on eBay – just once or twice probably is not going to run afoul of any of these rules.  A good resource to look at for some of these issues is the IRS website and publications where they define for tax purposes (and I emphasize, this is NOT necessarily how USCIS will rule) what is a business and what is a hobby.

Why should you be concerned about whether what you are doing is considered a “business” or not?  If USICS feels that you have started a business and you do not have the appropriate visa to work for that particular business, then you could be found to have worked without permission and this could jeopardize your immigration status and your ability to get permanent residence in the United States.  Therefore, this issue is extremely important and something you should look into BEFORE beginning any such activity.  Remember, USCIS can look into may business activities  – anything that is your tax returns or reported to the IRS, they could decide to review.  They can, and do, troll through the internet in some cases as well to see what they can find about a person – and if they see an Etsy store or something similar, this could raise questions in their mind.

If you have any questions leave a comment below or send me an email.  Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.