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New USCIS Guidance on Adjudication of H-1B for Third-Party Worksites

Posted June 23, 2020Cheryl Kilborn - Sr. AssociateH-1B



U.S. Citizenship and Immigration Services (USCIS) recently rescinded two policy memoranda impacting adjudication of H-1B petitions for employees placed at third-party locations. These types of petitions have historically been denied at a high rate, particularly within the IT industry, based on the now rescinded policy memoranda, because USCIS determined that either the third-party is the actual employer (as opposed to the H-1B petitioner) or because specific and detailed job duties were not provided with the request for H-1B classification.

USCIS issued new policy guidance in place of the rescinded policy memoranda. This new policy guidance is effective immediately and applies to any pending or new request for H-1B classification, including motions on and appeals of revocation and denials of H-1B classification.

Specifically, the new policy guidance provides that:

  • H-1B petitioners can demonstrate the requisite “control” for an Employer-Employee relationship by meeting any one of the regulatory criteria: “hire, pay, fire, supervise, or otherwise control the work of.”
  • To demonstrate the existence of a bona fide job offer, H-1B petitioners are no longer required to submit third-party contracts, evidence of specific non-speculative day-to-day assignments, or detailed itineraries when an H-1B employee will work at more than one location.
  • Reasonable periods without work are allowed for H-1B visa holders as long as they continue to be paid (i.e. non-productive status). In that instance, however, USCIS maintains discretion to determine whether an amended or new petition was required and/or to deny an extension or change of status request for failure to maintain status.
  • USCIS has the authority to grant H-1B visas for less than the requested period but in doing so, must provide its reasoning behind any partial approvals. We note that, anecdotally, it appears USCIS has been issuing H-1B visas for the full requested period in light of the new policy guidance.

This new policy guidance is the result of litigation in which approximately thirty-three IT consulting companies challenged USCIS’s authority to deny H-1B petitions (ITServe Alliance, Inc. v. Cissna). The suit alleged improper interpretation and application by USCIS of the employer-employee, non-speculative work assignment, and itinerary requirements.

Notably, while USCIS no longer requires evidence of specific non-speculative day-to-day assignments to demonstrate a bona fide job offer, H-1B petitioners are still required to demonstrate the nature of the specialty occupation (through a detailed job description) and the individual qualifications of the H-1B employee. Under the regulations, an H-1B petitioner must demonstrate the specialty occupation through evidence that a degree is required (in a specific specialty) to hold the position, and that the H-1B employee has the requisite degree, or that the H-1B employee has the experience to perform in the position without such degree.

USCIS continues to issue requests for evidence challenging whether a position is a specialty occupation and/or whether the H-1B employee is qualified to perform the position based on individual education and/or experience. Meltzer Hellrung represents employers with H-1B filings, and with responding to complex requests for evidence, notices of intent to deny or revoke, and appeals on these issues and the ones noted in the new policy guidance.

Please reach out to your designed Meltzer Hellrung attorney with questions or email us at consultation@meltzerhellrung.com

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Presidential Proclamation to Suspend Entry of Nonimmigrants Signed

Posted June 22, 2020Stephanie Wedel - Sr. AssociateArticles

President Trump has signed the Presidential Proclamation that impacts the ability of nonimmigrant visa holders in H-1B, H-2B, L-1, and J-1 status, as well as their dependents (H-4, L-2, J-2 visa holders), to travel internationally effective June 24th until December 31, 2020.  There will be a review within 30 days of the initial effective date, and every subsequent 60 days thereafter to determine if any modifications to the order are necessary.

The proclamation extends the current ban on green cards issued at consulates through December 31, 2020. This only affects green card applications directly at the consulates, and does not impact those for individuals who are currently in the U.S.

Who will be impacted by the proclamation

This proclamation applies to the H-1B, H-2B, L-1, and J-1 individuals (and their dependents in H-4, L-2 and J-2 status) who are currently outside the U.S. and limits their ability to re-enter.  Individuals in these categories who are outside the U.S. and who do not hold a valid visa, advance parole, or other U.S. travel document will not be permitted to enter the U.S.

Specifically, individuals in the following statuses (and their dependents) will be affected:

  • H-1B Specialty Occupation Temporary Workers
  • H-2B Temporary Non-Agricultural Workers
  • H-4 Dependents
  • L-1A Executives and Managers
  • L-1B Specialized Knowledge Workers
  • L-2 Dependents
  • J-1 interns, Trainees, Teachers, Camp Counselors, Au Pairs and Summer Work Travel Participants
  • J-2 Dependents

This will impact all individuals in the above listed categories who are outside the U.S. without a valid visa, including current employees.  Individuals who have been approved for these categories, but have not yet obtained a visa stamp will also be impacted, including H-1B lottery applicants abroad.

Currently, the proclamation does not affect Canadian nationals who do not require a visa. We will continue to provide updates as more information is made available.

Who is not impacted by the proclamation

The proclamation does not affect individuals who:

  • Are inside the U.S. at the time of the proclamation
  • Have a valid nonimmigrant visa, advance parole or other U.S. travel document as of the date of this proclamation
  • Are lawful permanent residents of the U.S.
  • Are the spouse or child of a a U.S. Citizen
  • Are seeking to enter the U.S. to provide temporary labor or services essential to the U.S. food supply chain

This proclamation does not affect those who are in the U.S. and seeking a change of status or extension of status for the above listed visa categories.

Recommendations

Individuals who do not have valid visa stamps should not plan any international travel while the ban is in effect.

For individuals who have approved petitions (including H-1B lottery applicants), but have not yet received the visa stamp, the earliest they will be able to enter the U.S. will be January 1, 2021. U.S. immigration laws do permit telecommuting while abroad if companies would like to have these workers employed prior to January 1, 2021.

Please reach out to your designated Meltzer Hellrung attorney if you have any questions.

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Nonimmigrant Entry to be Suspended for H-1B, H-2B, L-1 and J-1 Visa Holders

Posted June 22, 2020Stephanie Wedel - Sr. AssociateArticles

President Trump is reported to be preparing to sign a Presidential Proclamation shortly that will have a massive impact on nonimmigrant visas (H-1B, H-2B, L-1 and J-1) and their dependents.  This proclamation will be effective for as long as 90 – 180 days.  The substance is likely to include the barring of entry to the U.S. for those in H-1B, H-2B, L-1 and J-1 categories. Reports expect exceptions for employees in certain industries, such as healthcare and food supply. The order is not anticipated to affect those individuals already in the U.S. with change of status or extension requests.

Our recommendation is that all foreign national employees in these categories return to the U.S. as quickly as possible to avoid issues re-entering the U.S. 

We will follow up with additional guidance as more information is provided.

 

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Employment-Based Green Cards Expected to Temporarily Increase from 140,000 to 200,000 in Fiscal Year 2021

Posted June 21, 2020Cheryl Kilborn - Sr. AssociateGreen Card

The U.S. Department of State (DOS) announced that it expects a significant amount of unused Fiscal Year (FY2020) family-based immigrant visa numbers. The reason for this appears to be a combination of the Presidential Proclamation restricting issuance of family-based green cards, and COVID-19. This is good news for all employment-based visa categories and an unintended benefit we predicted would happen as a result of the Presidential Proclamation. This is because the Immigration and Nationality Act (INA) requires unused family-based visas to be used for employment-based green cards in the following fiscal year. The next fiscal year begins approximately three (3) months from now on October 1, 2020 (FY2021).

The INA limits the total annual number of employment-based green cards to 140,000 individuals. This worldwide limit is split among five employment-based categories – the first three of which each receive 40,040 green cards (EB-1, EB-2 & EB-3), and the other two receive 9,940 each (EB-4 & EB-5). The INA further limits each immigrant-sending country to an annual maximum of 7% of all employment-based green cards, known as the per-country ceiling. With the roll-down of unused family-based visas, DOS expects the number of available employment-based green cards to increase to at least 200,000.

Because of the 7% per-country ceiling, which has created a long wait (backlog) to receive employment-based green cards, the additional numbers are expected to benefit foreign nationals of India and China in the EB-1, EB-2, and EB-3 categories, with each category getting approximately 17,160 additional visas in FY2021. The EB-4 and EB-5 categories would each get 7.1% of the worldwide limit, resulting in an additional 4,260 visas in those categories.

The current backlog consists of individuals who possess approved employment-based petitions and who are waiting for a statutorily limited green card. Given the predicted forward movement in employment-based green cards in FY2021, we encourage employers to consider starting the green card process now, particularly for foreign employees who have approved employment-based petitions through a prior employer but require your sponsorship to complete the employment-based green card process.

Meltzer Hellrung assists employers with obtaining approved employment-based petitions for foreign employees. We also track our clients' approved employment-based petitions against the DOS’s monthly visa bulletin to notify them when a foreign employee becomes eligible to apply for a statutorily limited green card.

Please contact your designated Meltzer Hellrung attorney if you have questions or contact us at consultation@meltzerhellrung.com.

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DOL to Continue to Issue Electronic PERM Labor Certifications

Posted June 18, 2020Articles

The Department of Labor (DOL) will continue to issue PERM labor certifications electronically through September 30, 2020. In late March, DOL’s Office of Foreign Labor Certification (OFLC) announced that it would e-mail certified PERM labor certifications to employers through June 30, 2020 due to the COVID-19 pandemic. On Wednesday, June 16th, the OFLC announced it would extend this practice through September 30, 2020.

According to DOL, USCIS may consider an electronically issued PERM that is appropriately signed as evidence of an “original labor certification” for purposes of filing a Form I-140 petition. 

Employers will continue to receive certified PERMs via e-mail instead of through the U.S. post.

Contact your designated Meltzer Hellrung attorney if you have any questions.

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