06 Jun 2017

Employers: Be Prepared for Increased Audits from Department of Labor

Department of Labor has today announced their intention to conduct sweeping audits against employers who hire foreign national employees on H-1B and other visa types, see here: https://www.dol.gov/newsroom/releases/opa/opa20170606

Please make sure that all of you have:

1. Public Access Folders for ALL current H-1B employees

2. Properly completed and maintained form I-9 for each employee irrespective of whether or not they are US Citizens/“Green card” holders.

3. Are in compliance with your State’s Wage and Labor laws

I-9 penalties were raised significantly in 2016; consequently, the current cost of having errors on Form I-9 or not being complaint are as follows:

Form I-9 Paperwork Violations:
Previous fine per Form I-9 violation: $110 to $1,100
Fine effective August 1, 2016 per Form I-9 Violation: $216 to $2,126
Unlawful Employment of Unauthorized Workers:
First Offense
Previous fine, per worker: $375 to $3,200
Fine effective August 1,2016 per worker: $539 to $4,313
Second Offense
Previous fine per worker: $3,200 to $6,500
Fine effective August 1, 2016, per worker:$4,313 to $10,781
Subsequent Offenses
Previous fine, per worker: $4,300 to $16,000
Fine effective August 1, 2016, per worker: $6,469 to $21,563
Unfair Immigration-Related Practices
First Order
Previous fine, per worker: $375 to $3,200
Fine effective August 1, 2016, per worker: $445 to $3,563 (however repeat offenders could face a new maximum penalty of $21,563 per worker.)
These fines also increase per subsequent order and frequent offenders may face a maximum fine of $17,816 per worker.

Unfair Immigration-Related Practices – Document Abuse
Previous fine, per individual:$100 to $1,100
Fine effective August 1, 2016, per individual: $110 to $1,100

I strongly recommend that in this heightened audit environment that all employers conduct internal I-9 audits. I realize that this may be more money than some of you are able to/ want to spend, but the costs of not being in compliance are excessive. I strongly urge you to please consider this as a safety mechanism to ensure you are compliant. Please call us if you have questions regarding timelines and costs of an internal audit. We would be happy to work with you.

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19 May 2017

Starting a Business by an H-1B Visa Holder

Increasingly, we find that we are answering questions from  entrepreneurial souls who want to start their own businesses to market their great ideas but are hobbled in their goals due to the severe restrictions placed on certain visa classes by USCIS.

The short answer to is it possible for an H-1B visa holder to own his/her own business is that this is a scenario best avoided as there are severe risks to non compliance with the visa status.

H-1B Overview:

Under normal circumstances, the broad H-1B requirements are:

  • A job offer for a specialty position (requiring a bachelor’s degree or higher) from a qualified U.S. employer.
  • A bachelor’s degree or higher that is relevant to the position.

The biggest challenge for self owned enterprises is meeting the requirement that there be an employer-employee relationship. This relationship is coined “the conventional master-servant relationship as understood by common-law agency doctrine”. In order to establish this relationship, the employer must prove their right to control the employee.

The right of control can be broken down into several conditions:

  • Does the petitioning employer supervise the employee’s work?
  • Can the employer control the daily tasks of the employee?
  • Does the employer give the employee the equipment needed to complete his or her tasks?
  • Does the employer have the power to hire, pay, and fire the employee?
  • Is the employee claimed for taxes?
  • Are there any benefits provided by the employer such as insurance or bonuses?
  • Can the employer control exactly how the work is done?

These conditions must also continue as long as the employee is under H-1B status for that particular employer. The USCIS has made it a point to say that no one factor will be decisive, but rather that each will be weighed for or against the decision.

Is a self employed H-1B possible?

US Citizenship and Immigration Services (USCIS) in January 2010, issued a memorandum https://www.uscis.gov/news/questions-answers-uscis-issues-guidance-memorandum-establishing-employee-employer-relationship-h-1b-petitions

This memo clarified the regulations surrounding entrepreneurship stating that an H-1B holder can start a business and also work for it, provided that:

  • A board of directors, CEO, or similar entity has the power to hire, pay, and fire the beneficiary. Therefore, the nonimmigrant will be treated like an employee despite having ownership.
  • The H1B holder is not the sole proprietor of the company
  • The position in question must be bona fide, meaning that the company cannot have been started for the purpose of securing an H-1B visa.
  • The position must still require a relevant bachelor’s degree or higher.
  • The company should have a business plan that includes the purpose of hiring qualified American workers. This is because the 2010 memorandum was created so that more U.S. workers could find employment.

In order to be successful as an owner/employee, it is essential to have a board of directors with complete, unfettered control to hire, supervise, set compensation, and terminate the owner. No, you cannot create a board of family and friends who are effectively “dummy directors” in that their only role is to essentially rubber stamp and go along with all of your plans. This MUST be a truly functioning board with complete autonomy to do their job in the best interest of the entity. USCIS looks upon such petitions with extreme suspicion, and will investigate such applications.

Can I, as an H-1B holder, start my own separate company?

Restrictions on Entity Type:

As a Non-US Resident, the only type of entity that you can incorporate in the US, is a C Corporation. While it is possible for H-1B visa holders to start an entity as a C corporation

Restrictions on your activities for the entity:

As an H-1B visa holder you cannot run or work for the company if your H-1B is through a different employer. You can only be a passive investor i.e. invest the money, and then refrain from making any business decisions. As the owner/investor, you can appoint a director or CEO to run your business, but you yourself, cannot be involved in any day-to-day operations or perform any task(s) that would constitute work.

How We Can Help:

Because the issue of whether or not an H-1B holder can start a business is fraught with strict regulations that could seriously impact your status or petition if broken, seeking the counsel of an experienced immigration attorney is an absolute must, as the consequences of making a mistake in these situations can be very high.

Our lawyers specialize in providing foreign professionals and entrepreneurs with the guidance they need to secure and maintain H-1B status as well as many other non-immigrant visa situations. Please do not hesitate to contact us should you have any questions.

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12 Apr 2017

Alert to Frequent Fliers: Customs & Border Protection (CBP) needs to borrow your electronic devices and data!

Although this may seem unfathomable to most in the U.S, the Customs and Border Protection (CBP) has begun a routine process of inspecting electronic devices of ALL incoming passengers. Yes that also includes US Citizens and Lawful Permanent Residents.

The “inspection” of electronic devices includes cell phone, I-pads, computers and any other electronic device where information can be stored. Yes, some officers have also asked for passwords for Social Media Accounts, and if you, like thousands others, have Facebook, LinkedIn, Instagram etc on your I-pad, computer or smart phones, those apps are also subject to examination.

If CBP selects your device to be inspected, they have the right to retain the appliance/instrument for several days (i.e you will NOT be walking out of the airport or land border with your phone/computer/tablet!) CBP will instead issue you a form (6051-D) that details what item(s) are being detained, who at CBP will be your point of contact, and the contact information (including telephone number) you provide to facilitate the return of your property within a reasonable time upon completion of the examination.

It is important to note that CBP may keep your electronic device for a period of time that differs from a few hours upto 5days; or they may never return it to you, but instead seize it if the device contains evidence of a crime, contraband or other prohibited or restricted items or information – then you will be notified of the seizure as well as your options to contest it through the local CBP Fines, Penalties, and Forfeitures Office.

CBP has asserted that the right to inspect electronic devices, also gives them the right to copy materials/information stored on any/all of the devices they retain. T right to copy extends to information that is normally classified Personal or Business Confidential Information and also to information normally protected by the Trade Secrets Act.

How is this legal?

The Fourth Amendment to the United States Constitution protects us against unreasonable government searches and seizures. This generally requires the government to show a court probable cause that a crime has been committed and get a warrant before it can search a location or item in which you have a reasonable expectation of privacy.

Searches at places where people enter or leave the United States may be considered “reasonable” simply because they happen at the border or an international airport, and the 4th amendment technically does not apply at Ports of Entry; including land, sea and air ports.

This area is primed for lawsuits, and we expect that Privacy advocates will push for a narrowing of the “border exemption” doctrine to a more narrow framework, but till that happens, CBP has vast authority to demand passwords; inspect your digital data, and keep a copy of documents and materials that would otherwise be protected.

Can I refuse to Cooperate?

Passengers do have the right to deny CBP authority to keep the device, but that, for US Citizens and Lawful Permanent Resident passengers returning to the US, could mean sitting in Secondary Inspections for upto 10 hours or more. CBP cannot deny a US Citizen the right to return to their country, but they can detain you at the airport for several hours.

Non U.S. Citizens have even fewer rights, and may be denied entry and expeditiously removed from the airport for refusing to comply.

Precautions you can Take

For those of you with access to an in house Tech Department, take their advice on what would be best for you and your business. Frequent travelers have resorted to having a “travel device” that they, by design, store minimum data on.

Make regular backups of your electronic devices which ensures that your important information stays available to you if your computer is ever taken from you, lost, or destroyed. (If you don’t have access to your computer, you’ll still have access to your data.)

Encrypting the information on the computer, which ensures that your information stays confidential from other people whom you don’t authorize to access it. (If you lose control of your computer, other people won’t have access to your data.)

For more information on CBP policies pertaining to the above, you can and should review their page https://www.cbp.gov/sites/default/files/documents/inspection-electronic-devices-tearsheet.pdf

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07 Feb 2017

Employer’s Guide to H-1B Visa Filing in Uncertain Times

The recent spurt of Executive Orders and speculations that the current Administration plans to severely curtail the availability of H-1B visas even further than has been the case in the last few years has caused much consternation and fear in many employers and hopeful employees. The source of much of this speculation and forecasting is an allegedly leaked Executive Order on H-1B and L-1, and two competing bills currently making their way through the House.

It is crucial that employers and employees sift fact from fiction as each prepare to head into H-1B season for Fiscal year 2018. The law as it currently stands:

H-1B “cap subject” applications can be filed with USCIS on April 01, 2017. This year, much like last year, we expect USCIS to receive enough applications that a lottery will be necessary to select the lucky few that will be able to proceed with their H-1B applications. The H-1B “Cap” refers to the annual numerical limitation set by Congress on the number of workers authorized to be admitted on an H-1B-type visa or authorized to change status if already in the United States.

Under the Immigrant Act of 1990 (IMMACT), Congress imposed an annual cap of 65,000 H-1B visas for each fiscal year (Undergraduate degree) plus an additional number of 20,000 H-1B visas for those with a US Masters degree. The total number of cap subject H-1B visas available in any fiscal year is 85,000.

This number has NOT increased for Fiscal year 2018; therefore, employers who want to file H-1B visas for employees would be best served by making sure that they and the respective employee is ready with all requisite documents, and that the H-1B application is filed with USCIS on April 01, 2016. The cap is expected to be reached within the first three days.

H-1B Plan of Action for Employers:

  • All employers should have identified candidates and potential employees by the end of February at the latest
  • Labor Condition Applications (LCA) must be filed and certified before the H-1B can be submitted. Please note that it takes, on average 5 working days for an LCA to be certified. If you are new employer, allow a minimum of at least 10 days for the LCA to be certified.
  • ALL H-1B applications MUST be mailed to USCIS on March 31, 2017 in order for them to arrive at USCIS on April 01, 2017 i.e. the first day that USCIS will accept H-1B applications for FY 2018.

*Please see advice regarding actions for TN/OPT workers below

Proposed Amendments to H-1B Visa that are pending in Congress

“High Skilled Integrity and Fairness Act of 2017” (H.R. 670)

Introduced by Rep. Zoe Lofgren, this bill aims to do the following:

  • Eliminate Per Country Cap for Employment based Visas so that there is no backlog for people of particular national origin as has been the case for Nationals of India and China
  • Increases Minimum Wage: Re-sets the dependent wage exemption level from $60,000 to $130,000 or higher (Dependent employer is defined as a company with minimum of 50 employees where at least 25 are on H or L status)
  • Allows for Transparency to benefit the Employee: Employers must provide the employee with a copy of their immigration paperwork within three years of the date on which the petition was filed with the Government, AND provides for prohibiting liquidated damages for H-1B employees who cease employment prior to a date agreed to by the employee and the employer
  • Reforms the Prevailing Wage System to effectively eliminate the lowest wage (Level 1 wage) and increases wages in the remaining two levels
  • Allows for Market Based H-1B Visa Allocation: Prioritizes allocation of H-1B visas based on wages as follows:
    •  Employers paying prevailing wage level 3 at 200% of prevailing wage, then 150% of prevailing wage (including cash bonuses and similar compensation);
    •  Employers paying level 2 at 200% of prevailing wage, then 150% of prevailing wage (including cash bonuses and similar compensation);
    • Employers paying level 1 at 200% of prevailing wage, then 150% of prevailing wage (including cash bonuses and similar compensation);
  • Change of job location to require higher wage: Requires that if employers have beneficiaries work 30 days or more in an area of employment other than the one indicated at the time of filing, they must pay the prevailing wage of the area of employment with the highest prevailing wage at the same wage level indicated at filing.
  • Reservation of Visas for StartUp Employers: The bill sets aside 20% of the total available H-1B visas for small and start-up employers. Employers MUST sign an attestation that any beneficiary filing under this subsection will not be required to work at a third party location for  more than 30 days
  • Removes the need for Amended H-1B Petitions: Streamlines H-1B filing requirements and reduces administrative costs by clarifying that an amended petition need not be filed with USCIS upon an employee worksite change, if the petitioner has already secured a valid, certified Labor Condition Application for the new place of employment.
  • Enforcement Authority: Allows USCIS to pass on information to the Department of Labor to initiate investigations against the employer for violations of H-1B regulations

Protect and Grow American Jobs (H.R.170)

Introduced by Rep. Darrell Issa and co-sponsored by Rep. Scott Peters, this bill is aimed at tightening, but not closing, a loophole that the sponsors believe large H-1B firms have benefited from. Key aspects of this bill include:

  • Preference for American Workers: Any company paying H-1B workers less than $100,000 would have to show that they attempted to, but could not Americans for the same job
  • The bill would also increase minimum wage payable to H-1B workers to at least $100,000
  • It eliminates the Master’s Cap
  • It applies to all employers with a workforce of at least 50 full time employees where at least 15% are on H or L visas.

The Leaked Executive Order

Executive Order on Protecting American Jobs and Workers by Strengthening the Integrity of Foreign Worker Visa Programs

Disclaimer: There is no confirmation or indication that this “leaked” order even originated in the White House, but it has been reported on by several news sources. As of today, no bills or orders resembling this document has been signed.

Impact on H-1B Workers:

The (unconfirmed and unsigned) draft version of this executive order would not have a direct impact on the H1B program, but it would pave the way for changes to come in the future. Although lacking in specifics, the order instructs the Secretary of Homeland Security to:

  • “in consultation with the Secretaries of State and Labor … restore the integrity of employment-based non-immigrant worker programs and better protect U.S. and foreign workers affected by those programs”
  • “consider ways to make the process for allocating H1B visas more efficient and ensure that beneficiaries of the program are the best and the brightest”
  • “… provide recommendations for making U.S. immigration policy better serve the national interest; and to recommend changes to the immigrations [sic] laws to move towards a merit-based system”

As stated above, specifics are lacking, and the instructions are all relatively vague. The order serves to direct the Department of Homeland Security (DHS) to examine potential changes to be made in the future. It calls for the Secretary of Labor to issue a report on “… the actual or potential injury to U.S. workers caused … by work performed by non-immigrant workers in the H1B, L-1, and B-1 visa categories.” There is the potential for future changes to the program based on these reports, but the exact nature and extent of those changes remains to be seen.

Impact on L-1 Workers:

The leaked version specifically direct Department of Homeland Security to expand site visits targeting place of employment for L-1 employees. It also requires the Secretary of Labor to:

  1. provide within 18 months a report to the President describing the “extent of any injury to U.S. workers caused by the employment in the United States of foreign workers admitted under non-immigrant visa programs or by the receipt of services from such foreign workers by American employers; and
  2.  provide within 9 months a report on the “actual or potential injury to U.S. workers caused, directly or indirectly, by work performed by non-immigrant workers in the H-lB, L-1, and B-1 visa categories.”

Given the above and the general state of uncertainty, what should employers do:

  1. BE PREPARED FOR INCREASED ENFORCEMENT: Employers should not only anticipate increased workplace audits and document inspections from Immigration and Customs Enforcement (ICE), but may also see the return of higher profile and heavily punitive actions such as workplace raids and worker detention. These high profile actions may also be highly publicized in efforts to make an example of businesses and workers that thwart the new administration’s vigilance.
  2. I-9 COMPLIANCE/E-VERIFY IS IMPERATIVE: Currently use of the federal Employment Eligibility Verification (E-Verify) system is only required for certain federal contractors and in a patchwork of states. About half the states have some form of law that addresses E-Verify, but these laws differ as to the employers to which they apply. Some states require all employers to participate, some only public employers, some public employers and contractors, some only contractors, etc.We are likely to see legislation making the use of E-Verify mandatory for all employers—or at least employers of a certain size—nationwide. Though previous attempts to make E-Verify mandatory have failed, these efforts have been part of broader, comprehensive immigration reform bills. Pursuit of mandatory E-Verify in a stand-alone legislative measure may be more successful.

    E-Verify is free to use. Employers who wish to learn more about the I-9 or E-Verify, or who wish to conduct an audit to ensure you are in compliance before Homeland Security Investigations (HSI) comes knocking are encouraged to call us at (206) 623-3352. We will sit with you and train you to properly complete Form I-9 and help you  create a system to properly maintenance and purging or old I-9 records

  3. COMPLIANCE IS KEY: I-9 and E-Verify are not the only compliance requirements for employers. ALL employers with H-1B employees, must also make sure to have a Public Access File (PAF) per employee on hand. If you do not know what a PAF is, or how to create one, call us now!
  4. PLAN AHEAD: Employers with any employees on TN, H-4(EAD) or STEM OPT should plan ahead. It is likely that the current administration will re-negotiate NAFTA in such a way that TN visas may well be placed in immediate jeopardy. To avoid loosing any employees you currently have that may be on TN status, it is best to include these employees in your plans for H-1B filings for Fiscal year 2018. The same advice applies to all employees currently working on H-4 EAD’s and OPT’s which may be terminated at a moment’s notice.
  1. STAY UPDATED ON CHANGES TO EMPLOYMENT BASED VISAS: A close working relationship with Immigration counsel, whether in-house or outside counsel is key at this time. We are witnessing sea changes in Immigration Law enacted with very little or no advance notice. Your ability to make sense of the changing landscape with minimal loss to your business and the people that support you and your work will depend on your relationship with trusted advisors that are able to guide and support you.
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01 Feb 2017

Effect of Executive Order on Pending Applications at USCIS

The Recently enacted Executive Order that bars entry into the US from Nationals of 7 predominantly Muslim countries has now been expanded to also negatively impact ALL pending applications before the US Citizenship and Immigration Services (USCIS)

Pursuant to an article published in the Intercept, Daniel M. Renaud, Associate Director of Field Operations for DHS’ office of Citizenship and Immigration Services has issued a directive ordering ALL adjudications for nationals from the 7 affected countries to be stopped! https://theintercept.com/2017/01/30/asylum-officials-and-state-department-in-turmoil-there-are-people-literally-crying-in-the-office-here/

“Effectively [sic] immediately and until additional guidance is received, you may not take final action on any petition or application where the applicant is a citizen or national of Syria, Iraq, Iran, Somalia, Yemen, Sudan, and Libya,” wrote Daniel M. Renaud, Associate Director of field operations for DHS’s office of U.S. Citizenship and Immigration Services. “Field offices may interview applicants for adjustment of status and other benefits according to current processing guidance and may process petitions and applications for individuals from these countries up to the point where a decision would be made.”

“At that point, cases shall be placed on hold until further notice and will be shelved with specific NFTS codes which will be provided through the Regional Offices,” Renaud went on to say. “Offices are not permitted [to] make any final decision on affected cases to include approval, denial, withdrawal, or revocation.”

We are reviewing available recourse for our clients impacted by this decision. For those with pending Naturalization (“Citizenship”) applications, the law allows for applicants to file a lawsuit against USCIS in Federal Court and ask the Federal Court to adjudicate the case where USCIS refuses to adjudicate once the case has been pending for more than 120 days.

It is also unclear whether this policy is being implemented uniformly across all USCIS offices across the United States. However, if you or someone you know is from one of the 7 countries directly affected by the Executive Order, it is in your best interest to speak with your attorney, or seek immediate legal counsel if you do not already have an attorney helping you.

We are following all movements related to Immigration very closely, and while these are very fast moving actions, we will do our best to update you as news becomes available to us. In the meantime, please do not hesitate to contact us at 206-623-3352 or visit us online at www.orbitlawpllc.com should you have any questions or concerns. We will try our utmost to help as best we can.

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28 Jan 2017

TRAVEL ADVISORY: Executive Order Applies to ALL Non-US Citizens!

President Trump on Friday, January 27, 2017 signed an Executive Order titled “Protection of the Nation From Foreign Terrorist Entry Into The United States”, the executive order would bar entry to “Aliens” from certain countries from entering the United States for a period of 90 days.

The countries, currently affected by the order are: Iran, Iraq, Syria, Sudan, Libya, Yemen and Somalia.

While previously thought to apply only to Individuals seeking admission i.e. Visitor Visa and largely admission as Refugees into the United States, Gillian Christensen, acting Department of Homeland Security Spokeswoman, confirmed in an email to reporters that the Executive Order also applies to ALL Non-US Citizens, including Lawful Permanent Residents who may have temporarily left the United States to visit family abroad, or for work!

As of this moment, there is NO set guidelines or policy regarding the right of individuals with valid visa to return to the US, this includes the category of individuals who may be in possession of a Student (F-1) Work (H-1, L-1, O-1, P-1, R-1 or any other category)

Our strong recommendation to persons who might be affected by the Executive Order is to refrain from traveling outside of the United States. Legal challenges to the order have been filed as of yesterday. These are fast moving developments and we will follow closely. We will provide updates as soon as further information becomes available.

Should you have any questions, please contact Kripa Upadhyay or Steve Tanijo or call us at 206-623-3352.

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20 Nov 2016

USCIS Publishes Final Rule Impacting Employment Based Immigrants & Non-Immigrant Workers

USCIS on November 18, 2016, published their final rule impacting various aspects of certain Non-Immigrant and Immigrant visa programs.

  1. Employment Work Authorization (EAD) for Employees with Approved I-140: While there was much hope for an expansion to the EAD rule to allow more foreign workers to be eligible for the EAD, the final rule is still very restrictive. The rule permits persons in E-3, H-1B, H-1B1, O-1, or L-1 nonimmigrant status to apply for an EAD, provided that they meet certain conditions:
    1. The applicant is the beneficiary of an approved employment-based (EB-1, EB-2, or EB‑3) immigrant visa petition,
    2. The applicant is unable to apply for adjustment of status or an immigrant visa stamp because her priority date is not current under the Visa Bulletin,
    3. The applicant shows “compelling” circumstances justifying the grant of an EAD.

    The “compelling” circumstances are described as including one or more of the following:

    1. serious illness or disability faced by the worker or dependents
    2. employer retaliation against the nonimmigrant worker
    3. other substantial harm to the applicant
    4. significant disruption to the employer

    For those that are able to meet this restrictive definition, they are eligible for an EAD valid for one year.

  2. H-1B Extensions Beyond the Sixth Year

    The regulation codifies USCIS’s longstanding policies on H-1B extensions beyond the sixth year, with some additional requirements.

    • Post-sixth year extensions will be available to foreign nationals who are not currently in H-1B status, as long as they previously held that status and remain eligible for an additional period of H-1B admission, consistent with current policy.
    • An H-1B nonimmigrant will become ineligible for a one-year post-sixth year extension, if he or she fails to apply for adjustment of status or an immigrant visa within one year of the date an immigrant visa becomes available to him or her.
    • A one-year post-sixth year H-1B extension will cease to be available if, at the time the extension is filed, the foreign national’s labor certification is no longer valid, his or her I-140 has been denied or revoked or an adjustment application or an immigrant visa has been approved or denied.
    • An H-1B whose approved I-140 petition was withdrawn 180 days or more after approval will remain eligible for a three-year extension unless the I-140 was withdrawn for fraud, material misrepresentation, material USCIS error, or revocation or invalidation of the underlying labor certification.
  3. Portability and Priority Date Retention for I-140 Beneficiaries: The new regulation eases the impact of I-140 petition revocations and codifies certain longstanding agency policies on I-140 job portability.

    A foreign national whose I-140 petition has been approved for 180 days or more will not have the petition automatically revoked if the employer goes out of business or withdraws the petition.  However, the foreign national will need a new job offer or a new I-140 petition to obtain employment-based permanent residence.

    An I-140 beneficiary whose petition is revoked will be able to use the priority date for a subsequent I-140 petition, unless the reason for revocation was fraud, material misrepresentation, invalidation or revocation of the underlying labor certification or material USCIS error.

    Consistent with current policy, the beneficiary  of a pending I-140 will be able to port to new employment after his or her adjustment of status application has been pending for 180 days or more, as long as the pending I-140 petition was approvable when filed and remained approvable for 180 days after the filing of the adjustment application.

  4. Grace Periods for Nonimmigrant Workers

    Amongst the hardest challenges that Non-immigrant workers have faced in the US is that until now, they have been left with no “grace period” to try to find alternate employment, or even to dispose of their personal belongings should they find themselves suddenly unemployed. The law has always had a strict policy of the Non-Immigrant being out of status as soon as his/her employment is terminated. This law changes that. Employees on E, H-1B, H-1B1, L-1, O-1 and TN nonimmigrants whose employment is terminated early will be accorded one grace period of up to 60 days during each validity period, to allow them to extend, change or otherwise maintain status or, in the H-1B context, to port to new employment. 

    Approved E, L-1 and TN nonimmigrants will receive a 10-day grace period before and after their validity period, as is currently available to H-1B nonimmigrants. They will be able to enter the United States 10 days before their start date to prepare for employment, and will have 10 days at the end of their period of stay to take action to extend, change or otherwise maintain status, or prepare for departure from the United States.

    Employment is not authorized during the grace periods, except for H-1B foreign nationals who are porting to new employment.

  5. Employment Authorization Documents:  Automatic Extensions and Application Processing

    The regulation offers an automatic 180-day work authorization extension to certain foreign nationals who timely file for EAD renewal, including adjustment applicants, applicants for extension of Temporary Protected Status, and certain applicants under the Violence Against Women Act. The automatic extension will not be available to H-4, L-2 or E nonimmigrant spouses seeking renewal of employment authorization.

    The new regulation eliminates a rule that required USCIS to process EAD applications within 90 days and grant interim work authorization to those with an EAD application pending for more than 90 days.  As a practical matter, the agency had ceased adhering to these rules in recent years. USCIS has indicated that, except when impracticable, it will accept renewal applications up to 180 days before EAD expiration to minimize the impact of extended EAD processing delays on a foreign national’s continued eligibility to work; previous policy prohibited renewal applications from being filed more than 120 days before EAD expiration.

    The Big Unknown: These policy changes, while welcome and much needed, are set to take effect on January 17, 2017 i.e. a few days before the new Administration takes office. Therefore; it is, as yet, unclear as to whether or not this final proposed rule will in fact be implemented, or whether it will be withdrawn. There is speculation that Senator Jeff Sessions is to be the incoming administration’s nominee to lead the Department of Justice, of which USCIS and the Immigration Courts are a part. Sen. Sessions has been a vociferous opponent of Immigration reform, and should he be confirmed as the Attorney General, it is likely that policy changes such as these will be impacted.

We will continue to follow up on these and post updates as and when we have them. As always, please contact us at 206-623-3352 should you have any questions or if we can help you in any way.

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26 Oct 2016

Temporary Protected Status (TPS) Extended for Nepal till June 2018

The United States Citizenship & Immigration Services (USCIS) announced yesterday that they would automatically extend TPS for Nepal through June 28, 2018

Re-Registering for TPS:

For those that already have TPS, you MUST re-apply between October 26, 2016 through December 27, 2016 to maintain status

If you are a TPS beneficiary under the Nepal designation and your EAD is based on your TPS status with an original expiration date of December 24, 2016, your EAD is covered by this automatic extension.

To prove that you are authorized to continue working legally, you may show the following documentation to your employer and government agencies:

  • Your TPS-related EAD with a December 24, 2016 expiration date; and
  • A copy of the Federal Register notice announcing the automatic extension.

Late Initial Filing for TPS
You can apply for TPS for the first time during an extension of your country’s TPS designation period. If you qualify to file your initial TPS application late, you must still independently meet all the TPS eligibility requirements listed in the Eligibility section for Nepal.

To qualify to file your initial TPS application late, you must meet at least one of the late initial filing conditions below:

  • During either the initial registration period of Nepal’s designation or during any subsequent initial registration period if Nepal was re-designated you met one of the following conditions, and you register while the condition still exists or within a 60-day period immediately following the expiration or termination of such condition
    • You were a non-immigrant, were granted voluntary departure status, or any relief from removal
    • You had an application for change of status, adjustment of status, asylum, voluntary departure, or any relief from removal which was pending or subject to further review or appeal
    • You were a parolee or had a pending request for re-parole
    • You are a spouse of an individual who is currently eligible for TPS

OR

  • During either the initial registration period of  Nepal’s designation or during any subsequent initial registration period if Nepal was re-designated you were a child of an individual who is currently eligible for TPS. There is no time limitation on filing if you meet this condition. So if your parent is currently eligible for TPS and you were his or her child (unmarried and under 21 years old) at any time during a TPS initial registration period for Nepal, you may still be eligible for late initial filing even if you are now over 21 years old or married.  You may file during an extension of Nepal’s TPS designation time period.

Eligibility Criteria for Nepalese

In order to be eligible for TPS as a Nepali National, you MUST:

Continuous Physical Presence and Continuous Residence in the United States since June 24, 2015

You may NOT be eligible for TPS or to maintain your existing TPS if you:

  • Have been convicted of any felony or two or more misdemeanors committed in the United States;
  • Are found inadmissible as an immigrant under applicable grounds in INA section 212(a), including non-waivable criminal and security-related grounds;
  • Are subject to any of the mandatory bars to asylum. These include, but are not limited to, participating in the persecution of another individual or engaging in or inciting terrorist activity;
  • Fail to meet the continuous physical presence and continuous residence in the United States requirements;
  • Fail to meet initial or late initial TPS registration requirements; or
  • If granted TPS, you fail to re-register for TPS, as required, without good cause.

 

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20 Sep 2016

Seattle PERM Lawyer

Until 2005, the labor certification system in the United States was fairly slow and inefficient. For those seeking a way to immigrate the US for work, this long wait only added more stress to a process that was already extensive and stressful. Fortunately, PERM was introduced as a way to streamline the labor certification process so that both working immigrants and employers seeking to hire foreign workers could go through the visa process faster.

If you need guidance or legal counsel in attaining your labor certification in the US, there’s a law firm that specializes in just that. Located in Seattle, WA, the attorneys at Orbit Law, PLLC specialize in immigration and Nationality law. Because it is our core focus, we are dedicated to continuing our education and understanding of immigration law in the US. We frequently attend and speak at immigration-related seminars to keep our finger on the pulse of these ever changing laws. Now, keep reading to learn about PERM, and how it works within the labor certification process.

What is Labor Certification

Labor certification is an employment-based opportunity for obtaining citizenship. This process is done by US employers looking to hire an immigrant worker. There are numerous conditions attached to this type of green card, but the chief underlying condition is that the employer can’t find qualified US workers to fill the needed position. Once the application is approved by the United States Department of Labor, the employer can then work towards attaining permanent residency for said foreign worker. The labor certification process is complicated and can take a lot of time. Luckily, in the last decade, PERM was launched as a way to streamline the labor certification process for employers.

How Does PERM Work?

Program Electronic Review Management (PERM) is an electronic labor certification system designed to expedite the Labor Certification application process. With PERM, it only takes around 60 days to process the applications. This is a vast improvement from the old system, which took months of extensive interviewing and persuading before an employer was allowed to hire a foreign worker. While PERM has helped to expedite the labor certification process, the system as a whole is still very complicated, and would be best done with a knowledgeable attorney by your side.

PERM Timeline

From the start of the case to filing the PERM LC application, form ETA 9089, the PERM process usually takes four to six months. As explained in greater detail below, employers must complete certain detailed steps pertaining to efforts to recruit U.S. workers as part of the PERM process. These highly detailed requirements must completely be met before the case can be filed with the DOL.

Minimum Requirements and Duties for Offered Position

The starting point in the PERM LC process is establishing the duties and requirements for the position that forms the basis of the PERM case. There are specific regulations governing the content of the job description, as well as the job requirements or qualifications. These regulations must be carefully adhered to, as cases can be denied for issues that, to the average employer, may seem to be minor technicalities.

The sponsoring employer must set forth clearly defined job duties and educational and/or experience requirements needed to qualify for the position. The requirements set by the employer for the position must meet the DOL’s “actual minimum requirements” rule. This means that the requested education and/or experience must reflect the employer’s absolute minimum qualifications for the job to be performed in a competent (not superior) way.

An employer may never have considered these matters in the detail or in the same manner as the DOL prior to commencing a PERM case. In such a situation, it could take a number of days or even longer to finalize this initial part of a case. There is a high level of employer participation at this stage. Thus, the length of time required to complete this portion of a case depends in part upon the employer’s availability.

A separate aspect of the analysis of the job definition is the determination of whether the sponsored employee will be able to document that s/he meets the employer’s education and/or experience requirements. This can cause delays while efforts are made to obtain sufficiently detailed experience letters from prior employers, educational documents, and evaluations of foreign educational credentials.
Benefits of Obtaining Prevailing Wage Before Recruitment

In order to file the PERM application, it is necessary to obtain a prevailing wage determination (PWD) from the DOL. This establishes the appropriate minimum wage level required for the position. Wage determinations take approximately six weeks, as of this writing. While the PWD can be processed during the recruiting period, it is often advisable to obtain the determination prior to starting recruitment.

There are a number of reasons it is often beneficial for an employer to obtain the PWD before the recruitment process for the position begins. One reason is that there is a level of unpredictability in the DOL PWD process. If a wage is used that the employer believes will be the PWD, but the actual PWD issued weeks or months later turns out to be higher, the employer may be forced to restart the entire recruitment process from the beginning.

Timing issues are another reason many immigration practitioners favor obtaining the PWD before the employer starts recruitment. Recruitment efforts are only valid for a limited time, and if recruitment starts before the PWD is obtained, the PERM LC must be filed during the assigned validity period of the PWD. Thus, if recruitment cannot be completed before the PWD expires, it is often necessary to start the entire case over again.

The case can sometimes be salvaged if there is enough time to obtain a new PWD before the recruitment efforts expire. However, even when a new PWD is issued in time, the wage may be updated to a higher rate. This, too, may necessitate starting the recruitment anew. On the other hand, if the PWD is issued prior to any recruitment steps are taken; the validity of the wage determination is prolonged. Therefore, obtaining the prevailing wage before recruitment begins can avoid these potential complications.

Recruitment Format and Requirements

The DOL has exacting regulations as to the form and content of the recruiting efforts required of the sponsoring employer. The employer is required to use newspaper ads, a posting in the state labor department’s job bank, and, for professional positions, three additional allowed forms of recruitment. The regulations address not only the types of recruitment, but also the content of the advertisements.

Various companies and agencies generally must be utilized during the advertising process, which sometimes leads to errors. Therefore, this process must be closely monitored. For example, the state labor job posting is required to run for 30 full days. Sometimes, however, the state agency will cut short the posting without authorization. If this occurs and is not corrected, the DOL may deny the case. Other forms of advertising may not have to run for such a long period of time, but they are subject to issues such as human or machine error, which could also render the recruitment campaign unacceptable to the DOL.

During recruitment, the employer must promptly and appropriately respond to any resumes or applications submitted by interested candidates for the proffered position. Otherwise, the DOL will not consider the recruiting efforts to be valid and acceptable. This almost always leads the employer to have numerous questions for the attorney as to the appropriate response and screening of potentially qualified applicants. If an employer improperly handles job applications or interviews, it can doom the process.
30-Day “Quiet” or “Hold” Period

Some people like to call the period between finishing most of the recruitment and filing the application a quiet or hold period. In reality, it is part of the required recruitment period. After the 30-day job order and most of the other recruiting is complete, the PERM LC filing still must wait for an additional 30 days. This is so that the employer can continue to receive and consider job applications in response to the prior recruiting efforts. In general, if a PERM LC is filed before the 30-day mark, it will be denied.
Employer / Employee Sign Form Under Penalty of Perjury

The attorney may be able to prepare the extensive ETA 9089 form during the recruitment period. However, the form cannot be finalized until after the recruitment process is completed. Once the form is finalized, it must be approved by both the employer and employee, who will be signing their respective portions of the form under penalty of perjury.

Review PERM Carefully Before Signing and Filing

Employers and employees should take the time to carefully review the entire form and address any issues or discrepancies prior to filing. A pending form cannot be corrected.

The only option for fixing such errors is withdrawing and re-filing, and this is only possible if the recruiting and wage determination are still valid.
Qualified Candidate/s Applying Terminates PERM

Of course, if the recruitment locates qualified, willing, able, and available U.S. worker applicants to fill the offered position/s, the PERM application must end at that point, in most cases. If the employer wishes to do so, it may be possible to try again later, which would require starting the entire PERM process anew.

Orbit Law, Your Seattle Immigration Attorneys

Immigration law is too complicated to pursue on your own, so you can rest assured knowing that with our knowledge and experience, we can help you navigate the many legal issues that come with immigration and labor certification. You can contact our Seattle legal office here, or give us a call at 206-623-3352.

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19 Sep 2016

Permanent Residency Options For Multinational Executives And Managers (EB-1C)

The EB-1C Immigrant Visa belongs to the First Preference visa category. It is an excellent avenue for multinational companies to expand operations into the US as it allows senior level managers and executives, with direct company experience to enter the US and pursue permanent residence here.

Basic Eligibility: The basic requirements that must be met prior to pursuing this option are that the Individual must have been employed as either an executive or manager by a qualified company for a period of one year within the last three years immediately preceeding the date of the application

A qualified “executive” must be an individual who directly manages the organization or a major part of it; has extensive decision-making authority, and supervises other employees while receiving only general supervision or direction from upper management.

A qualified “manager” is an individual who manages at least a subdivision of an organization, and supervises and controls the work of other supervisory/professional/managerial employees, or manages an essential function of the business. Furthermore, a manager must have authority to employ and terminate those who are supervised or at least work at a senior level in the organization.

A “qualified organization” is an entity if it is either a US affiliate, parent or subsidiary of a foreign business entity. The terms “affiliate,” “parent,” and “subsidiary” are defined by immigration regulations.

Benefits of EB-1(C)

Shorter Processing Time: The EB-1(C) visa provides the applicant Permanent Residence within the United States. There are no formal quotas for these types of applications; hence, the wait time for Permanent Residence via this option is a considerably shorter wait than is true for the EB-2 or EB-2 visa categories.

No Labor Certification Required: Unlike the PERM process that requires employers to complete an often arduous task of advertising the available position, conducting good faith recruitment and then waiting the normal 4-6 month processing time in order to receive certification on an LCA, the EB-1(C) does NOT require Labor Certification as a part of the process.

How We Can Help: We know that demonstrating that an applicant meets the requirements of the EB-1C visa is a potentially overwhelming task. However, by working with a law firm like ours that has experience handling these types of applications and cases, you can rest assured that your application is in the hands of professionals who know how to help you achieve your goal of living and working in the U.S.

Please do not hesitate to contact us to find out what we can do to help.  Call (206) 623-3352

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