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Injunction on Public Charge Rule Limited to Residents of New York, Connecticut and Vermont

Posted August 18, 2020Cheryl Kilborn - Sr. AssociateArticles

We recently reported that the federal district court for the Southern District of New York to the Second Circuit issued 2 nationwide injunctions related to the Department of Homeland Security (DHS) Public Charge Rule and the Department of State (DOS) Public Charge Rule and Health Insurance Proclamation.

Last week, a federal appellate judge narrowed the nationwide injunction and held that for now, the DHS Public Charge Rule cannot be applied to residents of New York, Connecticut and Vermont. The injunction preventing implementation of DOS’s Public Charge Rules and the Health Insurance Proclamation are still in effect nationwide.

Next Steps

Until overturned, the district court’s injunction blocks the application of the Public Charge Rule for residents of New York, Connecticut and Vermont for any period during which there is a declared national health emergency in response to the COVID-19 outbreak. For these residents, USCIS will apply the 1999 public charge guidance that was in place before the Public Charge Rule was implemented on February 24, 2020. We will continue to submit the public charge form and supporting documents for residents of all states until USCIS directs otherwise.

The appellate judge’s decision will be reviewed by a three-judge panel. We continue to monitor the situation and will provide updates as litigation moves forward.

Please reach out to your designated Meltzer Hellrung attorney with any questions or contact our firm at: consultation@meltzerhellrung.com.

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USCIS Selects Additional H-1B Candidates for the FY2021 H-1B Cap

Posted August 14, 2020Cheryl Kilborn - Sr. AssociateH-1B

On August 14, 2020, USCIS conducted a second lottery for the FY2021 Cap. Employers or their representatives started receiving email notifications early this morning that new H-1B registrations had been selected for submission. Notably, unlike the previous lottery conducted on March 28, 2020, the registration notices for this round have “August 2020 Selection of Reserve Registration” printed prominently on the center of the notice. This is because the annual quota of 85,000 visas had not been reached with the initial lottery.

Cap subject H-1B petitions for selected candidates must be filed within the time period indicated on the selection notice and must still be sent, via standard paper filing, to the USCIS Service Center indicated on the selection notice. The filing period for this second round of selections is August 17, 2020, to November 16, 2020. Even though these can be filed as early as August 17, 2020, the start date must still be no earlier than October 1, 2020.

Because filing fees for all H-1B petitions, including H-1B Cap filings will increase on October 2, 2020, we anticipate a surge in filings before that date. Premium processing is still available for all H-1B petitions, including FY2021 H-1B Cap filings, but could be suspended based on a high number of filings in August and September and/or because of impending furloughs at USCIS.

Please reach out to your designated Meltzer Hellrung professional if you have any questions or concerns or contact us at consultation@meltzerhellrung.com for assistance.

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Exceptions to Presidential Proclamations (10014 & 10052) - Update for H-1B and L-1 Statuses

Posted August 12, 2020H-1B

The Department of State has issued additional clarification surrounding the Presidential Proclamation issued on June 22, suspending the entry to the United States of foreign nationals of certain visa categories, including H-1B, H-2B, and L-1 visa; J-1 visa applicants participating in the intern, trainee, teacher, camp counselor, au pair, or summer work travel programs; and any spouses or children covered applicants applying for H-4, L-2, or J-2 visas. 

Proclamation does not apply to individuals who:

  • Were in the United States on June 24th, or
  • Had a valid H-1B, H-2B, L-1, or J-1 visa and plans to enter the U.S. using that visa, or
  • Had another official travel document valid on June 24th.

If an H-1B, H-2B, L-1, or J-1 visa holder is not subject to the Proclamation, then neither the individual nor their dependent family members (spouse and children) would be prevented from obtaining a visa.

National Interest Exceptions to the Proclamation

H-1B applicants:

  • For travel as a public health or health care professional, or researcher to alleviate the effects of the COVID-19 pandemic, or to conduct ongoing medical research in an area with a substantial public health benefit
  • Travel supported by a request from a U.S. government agency or entity to meet critical U.S. foreign policy objectives or to satisfy treaty or contractual obligations.
  • Travel by applicants seeking to resume ongoing employment in the United States in the same position with the same employer and visa classification.  Forcing employers to replace employees in this situation may cause financial hardship.  

Travel by technical specialists, senior level managers, and other workers whose travel is necessary to the immediate and continued economic recovery of the United States.  Consular officers may determine that an H-1B applicant falls into this category when at least two of the following five indicators are present:

  • The petitioning employer has a continued need for the services or labor to be performed by the H-1B visa holder in the U.S.
    • Typically demonstrated by a Labor Condition Application (LCA) approved by the Department of Labor (DOL) during or after July 2020.
    • For LCAs approved before July 2020, the consular officer must determine the continued need from the visa application.
    • If an applicant is currently performing, or able to perform the essential functions remotely, then this indicator is not present.
  • The job duties or position within the company demonstrate the applicant will provide significant and unique contributions to an employer meeting a critical infrastructure need. Critical infrastructure fields include: chemical, communications, dams, defense industrial base, emergency services, energy, financial services, food and agriculture, government facilities,healthcare and public health, information technology, nuclear reactors, transportation, and water systems.
    • Senior level placement within the company or job duties showing performance of functions that are both unique and vital to the management and success of the overall business enterprise; or
    • Proposed job duties and specialized qualifications show that the individual will be making significant and unique contributions to the company.
  • The wage to be paid to the individual exceeds the prevailing wage rate by at least 15% (Part F, Questions 10 and 11 on the LCA).
  • Individual’s education, training, and/or experience demonstrate unusual expertise in the specialty occupation that individual will be employed.
  • Denial of the visa will cause financial hardship to the U.S. employer.
    • Employer’s inability to meet financial or contractual obligations
    • Employer’s inability to continue its business
    • Delay or impediment to employer’s ability to return to its pre-COVID-19 level of operations.

  L-1A applicants

  • Travel as a public health or healthcare professional, or researcher to alleviate the effects of the COVID-19 pandemic, or to conduct ongoing medical research in an area with a substantial public health benefit. 
  • Travel based on a request from a U.S. government agency or entity to meet critical foreign policy objectives or satisfy treaty or contractual obligations.
  • Travel by applicants seeking to resume ongoing employment in the United States in the same position with the same employer and visa classification.   Forcing employers to replace employees in this situation may cause undue financial hardship. 
  • Travel by a senior level executive or manager filling a critical business need of an employer meeting a critical infrastructure need. An L-1A applicant falls into this category when at least two of the following three indicators are present AND the L-1A applicant is not seeking to establish a new office in the United States:
    • Senior-level executive or manager;
    • Has spent multiple years with the company overseas, indicating substantial knowledge and expertise within the organization that can only be replicated by a new employee after extensive training;
    • Will fill a critical business need for a company meeting a critical infrastructure need.

L-1A applicants seeking to establish a new office in the United States likely do NOT fall into this category, unless two of the three criteria are met AND the new office will employ, directly or indirectly, five or more U.S. workers.

L-1B applicants

  • Travel as a public health or healthcare professional, or researcher to alleviate the effects of the COVID-19 pandemic, or to conduct ongoing medical research in an area with a substantial public health benefit. 
  • Travel based on a request from a U.S. government agency or entity to meet critical foreign policy objectives or satisfy treaty or contractual obligations. 
  • Travel by applicants seeking to resume ongoing employment in the United States in the same position with the same employer and visa classification.  Forcing employers to replace employees in this situation may cause undue financial hardship.    
  • Travel as a technical expert or specialist meeting a critical infrastructure need.  The consular officer may determine that an L-1B applicant falls into this category if all three of the following indicators are present:
    • Proposed job duties and specialized knowledge indicate that the individual will provide significant and unique contributions to the petitioning company
    • Individual’s specialized knowledge is specifically related to a critical infrastructure need; AND
    • Applicant has spent multiple years with the company overseas, indicating a substantial knowledge and expertise within the organization that can only be replicated by a new employee following extensive training.

J-1 applicants

  • Provide care for a minor U.S. citizen, legal permanent resident (LPR), or nonimmigrant by an au pair possessing special skills required for a child with particular needs (e.g. medical, special education, or sign language).
  • An au pair that prevents a U.S. citizen, LPR, or nonimmigrant from becoming a public health charge or ward of the state.
  • Childcare services provided for a child whose parents are involved with the provision of medical care to individuals with COVID-19 or medical research to combat COVID-19.
  • Exchange program conducted pursuant to an MOU, Statement of Intent, or other valid agreement or arrangement between a foreign government and any federal, state or local government entity in the U.S. designed to promote U.S. national interests if the agreement was in effect prior to June 24th.
  • Interns and trainees on U.S. government agency-sponsored programs that support the immediate and continued economic recovery of the U.S.
  • Specialized teachers in accredited educational institutions, demonstrating the ability to make specialized contribution to the education of students in the U.S.
  • Exchange programs that fulfill critical and time sensitive foreign policy objectives.

H-4, L-2, and J-2 applicants

  • National interest exceptions are available for those dependents who will be joining a principal applicant that has been granted one of the above exceptions.

Please reach out to your designated Meltzer Hellrung professional if you have any questions or concerns or contact us at consultation@meltzerhellrung.com for assistance.

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Enforcement Update - H-1B Site Visits

Posted August 4, 2020Cheryl Kilborn - Sr. AssociateH-1B

On August 3, 2020, the U.S. Department of Labor (DOL) and the U.S. Department of Homeland Security (DHS) via the U.S. Citizenship and Immigration Services (USCIS), entered into an agreement whereby the agencies would share information about suspected employer violations within the H-1B program. This agreement is a result of the Presidential Proclamation announced on April 22, 2020, which directed the Secretary of Labor to exercise its authority to initiate investigations of potential violations.

What does this mean for employers?

  • Site visits can be random or targeted, but employers should expect to see an increase in targeted site visits. Site visits are mostly unannounced.

The H-1B program responsibilities are divided among several agencies including USCIS, DOL, and the DOL Wage and Hour Division (WH). Once an employer obtains a certified Labor Condition Application (LCA) and approved H-1B petition, WH’s role is to enforce the attestations within the LCA. WH is responsible for ensuring that H-1B workers are receiving the wages attested to on the LCA and are working in the occupation and location specified. When violations are found, WH may assess civil money penalties for each violation and may also impose other remedies, including the payment of back wages. For current penalty amounts, see https://www.dol.gov/agencies/whd/immigration/h1b#cmp.

USCIS’s Fraud Detection and National Security Directorate (FDNS) is similarly responsible for ensuring that H-1B workers are or will be receiving the wages attested to in the H-1B petition and are working in the occupation specified. When violations are found, FDNS will refer the case to USCIS to make a final determination on whether to approve, deny, or revoke the H-1B petition.

Both agencies may initiate investigations with the use of random or targeted site visits. Meltzer Hellrung frequently assists employers with site visits and can be contacted for assistance should one occur. We have also put together a practice pointer to assist employers which provides guidance on what to expect before, during and after a site visit.

How should employers prepare for a site visit?

  • Have a response plan in place for site visits. Human resources departments, staff, and company signatories should be aware of the potential for site visits and should be prepared to follow the response plan.
  • Carefully review each petition and LCA prior to filing to ensure everything included in the petition is accurate.
  • Ensure the petition signatory knows where to quickly find a copy of the petition and LCA:
    • These documents are available in a shared folder for current clients.
    • The designated official should retrieve this documentation and review it prior to meeting with the government officer.
  • Provide a copy of the petition (redacted if preferred), LCA, and supporting documents to the petitioned-for employee.
  • If the petitioned-for employee has been placed at an end client location, the end client should be notified about the possibility of a site visit and instructed to contact you at the beginning of the site visit.
  • Proactively audit previously submitted petitions and LCAs on a set schedule and notify your legal representation immediately about material changes to job duties and changes to work location, as this could require an amended filing.

What should employers expect during a site visit?

  • Personnel responsible for greeting visitors should (in addition to following the response plan), request the name, title, badge number, and contact information of the person who visited. Because there are multiple government agencies that perform site visits, it is important to determine which agency is requesting information.
  • Ensure your designated representative and/or immigration counsel is present for any conversations between personal and the government official even if only be telephone.
  • If the government official asks a question that is beyond the scope of the petition or would require internal research, ask for additional time to respond rather than guessing.
  • The designated representative should take notes of all information requested and/or provided to the government official (verbally or in writing), the locations visited, the pictures taken and/or any other relevant information from the site visit.
  • Keep a record of any physical documentation provided to the government official during the site visit.

What should employers expect after a site visit?

Once a site visit is complete, the government official will assess whether the petitioner-employer and the petitioned-for employee are in compliance with the terms and conditions outlined in the petition (and LCA if applicable) or whether there were fraud indicators. For FDNS site visits, the government official submits a written report to USCIS for review and final determination.

USCIS will then:

  • Approve the visa petition (or if already approved take no action – in which case you will not hear anything further);
  • Issue a Request for Evidence (RFE);
  • Issue a Notice of Intent to Deny (NOID); or
  • Issue a Notice of Intent to Revoke NOIR).

In any case where USCIS contemplates denial or revocation of an immigration benefit based on evidence of fraud, misrepresentation, or non-compliance, the petitioner-employer will be given an opportunity to review and rebut the evidence prior to issuance of an adjudicative decision. Petitioner-employers will also have an opportunity to file motions or appeals if the application or petition is denied or revoked.

For WH investigations, if a violation has been found, the employer will receive written notification that a determination of violation(s) has been made. Petitioner-employers will have the opportunity to request a hearing before an administrative law judge (ALJ) on the determination and may also request a review the ALJ’s decision by DOL’s Administrative Review Board.

Please reach out to your designated Meltzer Hellrung professional if you have any questions or concerns about a site visit or contact us at consultation@meltzerhellrung.com for assistance.

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USCIS Fee Increases Effective October 2nd

Posted August 3, 2020Stephanie Wedel - Sr. AssociateArticles

Effective October 2, 2020, USCIS will be implementing a new fee schedule which will drastically change filing fees for many categories.  Some of the larger fee changes occurred in the following categories:

Form

Current Fee

Fee on 10/2

I-129 (E and TN)

$460

$685

I-129 (H-1B)

$460

$555

I-129 (L-1)

$460

$805

I-129 (O)

$460

$705

I-539 (dependents)

$370

$400

I-765 (EAD)

$410

$550

I-140

$700

$555

N-400 (Naturalization)

$640

$1,170

I-485/I-131/I-765 (Green card with work and travel authorization)

$1,225

$2,270

USCIS will be removing the reduced Form I-485 filing fee for children under 14 requiring all applicants to pay the new higher fee. In addition, USCIS is now requiring the $4000 fee for H-1B dependent employers with at least 50 employees and more than 50% in H-1B or L-1 status for all applications filed after October 2, 2020, and not just an initial application.

The Fraud and ACWIA fees, as well as the premium processing fees will remain unchanged.

We will continue to provide updates as they are made available.  Please reach out to your designated Meltzer Hellrung attorney with any questions.

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