On May 3, 2017 USCIS announced that data entry has been completed and petitions not selected are being returned to the Employer. You may continue to benefit from cap gap until you receive a rejection notice. Once the notice is received you have 60 days to leave the US starting from the later of the receipt of the rejection notice or the program end date. Aside from departing the U.S., you may have other options during this 60 day period.
If you have not taken advantage of the STEM extension and you are eligible to do so this is the best option as you will have at least one more opportunity to apply for the H-1B lottery. If you do not fall under the STEM category you have limited options. You can enroll in an MS or MBA but you will not get a second OPT period if you already have a Master’s degree. You can also apply for a PhD program.
You can also look for a cap exempt employer. This would allow you to immediately file an H-1B.
If those options are not available and your spouse holds an H-1 or an F-1, you can change your status to H-4 or F-2. Although you would not be employment authorized (unless your H-1 spouse has an approved 140) you can remain in the United States and potentially file again for the cap in April of next year.
Finally, if your employer has an office in another country you can see if there are opportunities for you to work abroad. After one year you could potentially return as an L or have another cap filing opportunity.
If you are out of options and you leave the US, an employer may still sponsor you for an H-1B from abroad. It goes without saying that it will be harder but not impossible to find a job in the States while abroad. Stay focused, lock in on your goals and good luck.
An Administrative Law Judge in 2012 found numerous H-1B violations, including willful failure to pay required wages to H-1Bs. In this case the ALJ assessed civil money penalties and debarred the employer for two years, but ordered the back wage assessment to be recalculated. (Matter of Sirsai, Inc., 7/27/12, Case No. 2011-LCA-00001).
The case contains an excellent discussion of “Leveling.” In this case the LCA contained a Level 1 wage for many perhaps most of the workers. The OES online website contains four levels of wages. Occupations are divided into broad categories in particular geographic locations. Level 1 is an entry-level position. Certain job requirements will increase the level assigned to the position. The Investigators used various means including the H-1B supporting letters to determine that because of the experience and special skills required for the position, a Level I wage was not appropriate. The Agents calculated the wage difference from the date the workers “entered into employment” with the Employer until there was a bona fide termination. We are talking about a wage assessment in excess of $900,000. Keep in mind that the Department of Labor does have an on-line system referred to as “I-Cert” which allows you to submit all relevant information to the Department of Labor for a wage determination. However, because of the length of time it takes to receive an on-line determination, Employer’s prefer to attempt their own determination. Backing into a Level is not the appropriate way to determine the wage. The on-line determination is protection for employers from DOL audits and assessment of back wages, provided the worker is in fact performing those duties and there is no misrepresentation. Sirsai is over forty pages in length but a worthwhile read for Employers. Below is an excerpt found at pages 3-4 of the case which discusses an Employer’s obligations under the program.
“The H-1B visa program allows U.S. employers to temporarily hire non-immigrants to fill specialized jobs in the United States. Specialized occupations are those occupations that require “theoretical and practical application of a body of highly specialized knowledge, and…attainment of a bachelor’s or higher degree in a specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.” 8 U.S.C.A. § 1182(n)(1)(A)(i); 20 C.F.R. §§ 655.731, 655.732. Employers who seek to hire an H-1B nonimmigrant in a specialty occupation must first submit to the Department of Labor (DOL), and obtain DOL certification of a labor condition application (“LCA”).3 20 C.F.R. § 655.700(b)(1); In the Matter of Eva Kolbusz-Kline v. Technical Career Institute, ALJ No. 93-LCA-4, 1994 WL 897284, at *3 (Sec’y July 18, 1994). The application must specify the number of workers sought, the occupational classification in which they will be employed, and the wage rate and conditions under which they will be employed. 8 U.S.C.A. § 1182(n)(1)(D). In addition, the employer must attest that it is offering and will offer during the period of employment the greater of: (1) the actual wage level paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question; or (2) the prevailing wage level for the occupational classification in the area of employment. 8 U.S.C.A. §1182(n)(1)(A)(i)-(ii); 20 C.F.R. § 655.730(d). The employer must retain the original signed and certified LCA in its files, and must make a copy of the application, as well as specified necessary supporting documentation, available for public examination. 20 C.F.R. § 655.705(c)(2). Once DOL certifies the LCA, the employer submits paperwork to the United States Citizenship and Immigration Services (“USCIS”) and requests an H1-B visa for the workers. The non-immigrant workers are then admitted to the United States.
The Act directs the DOL to review the LCA only for completeness or obvious inaccuracies. Unless the Department finds that the application is incomplete or obviously inaccurate, the Department shall provide the certification described by the Act within seven days of the date of the filing of the application. 8 U.S.C. § 1182 (n) (1) and 20 C.F.R. § 655.740. Upon certification of the LCA by DOL, the employer is required to pay the wage and implement the working conditions set forth in the LCA. 8 U.S.C. § 1182(n)(2). These include hours, shifts, vacation periods, and fringe benefits. Id. The Department has promulgated regulations which provide detailed guidance regarding the determination, payment, and documentation of the required wages. See 20 C.F.R. Part 655 Subpart H. The remedies for violations of the statute or regulations include payment of back wages to H-1B workers who were underpaid, debarment of the employer from future employment of aliens, civil money penalties, and other relief that the Department deems appropriate. 20 C.F.R. §§ 655.810, 655.855. An employer also has a duty to notify INS “immediately” of any changes in the terms and conditions of an H-1B nonimmigrant’s employment. 8 C.F.R. § 214.2(h)(11).
The Employer’s obligation to pay H-1B workers the required wages begins on the date on which the worker “enters into employment with the employer.” 20 C.F.R. § 655.731(c)(6). The H-1B worker is considered to “enter into employment” when he first makes himself available to work or otherwise comes under the control of the employer. Id. at § 655.731(c)(6)(i).
Alternatively, even if the worker has not yet “entered into employment,” where the worker is present in the U.S. on the date of the approval of the H-1B petition, the employer shall pay to the worker the required wage beginning 60 days after the date the worker becomes eligible to work for the employer. Id. § 655.731(c)(6)(ii). The H-1B worker becomes eligible to work for employer on the date set forth in the approved H-1B petition filed by the employer. Id.
Under the INA’s “no benching provision,” the employer is obligated to pay the required wage even if the H-1B nonimmigrant is in “nonproductive status due to a decision by the employer (e.g., because of lack of assigned work).” 20 C.F.R. § 655.731(c)(7)(i); Administrator v. Kutty, ARB No. 03-022, ALJ Nos. 01-LCA-010 through 01-LCA-025, slip op. at 7 (ARB May 31, 2005); Rajan v. International Bus.Solutions, Ltd., ARB No.03-104, ALJ No. 03-LCA-12, slip op. at 7 (ARB Aug. 31,2004). However, the employer does not need to pay compensation if the “H-1B nonimmigrant experiences a period of nonproductive status due to conditions unrelated to employment which take the nonimmigrant away from his/her duties at his/her voluntary request and convenience (e.g., touring the U.S., caring for ill relative) or render the nonimmigrant unable to work (e.g., maternity leave, automobile accident which temporarily incapacitates the nonimmigrant).” 20 C.F.R. § 655.731(c)(7)(ii).
The employer’s obligation to pay the required wage ends when there is a “bona fide termination” of the employment relationship. Id. at §655.731(c)(7)(ii). In order to effectuate the termination, the employer under the H-1B program, must notify the Department of Homeland Security (DHS) that the employment relationship has been terminated so that the petition is canceled. 8 C.F.R. § 214.2(h)(11). Where appropriate, the employer must provide the nonimmigrant employee with payment for transportation back home.”
If you are an Employer and you want additional information regarding obligations under the program, please do not hesitate to contact us.
The Washington Post is reporting that immigration arrests rose 32.6% in the first weeks of the new administration. There were a total of 21,362 individuals arrested compared with 16,104 during the same period last year. Of the 21,362, there were 5,441 that had no criminal record.
What is troubling is that there are reports of ICE officers detaining individuals unable to show legal authorization to be in the United States. The implementation of the Real ID Act leads us to believe that we are moving closer to a national ID card. To avoid the risk of detention, non-immigrants should carry a copy of their I-94 card and make sure that their I-94 is current. If you are an employment based non-immigrant it is critical that you print your I-94 after each trip abroad. If there is an error on your I-94 have it corrected immediately.
The I-94 is the official electronic record of your status in the United States. It contains the class of admission as well as the expiration of your status. If you lose your I-94 or travel outside the United States go to the U.S. Customs and Border Protections’ Form I-94 Web Page and print a new I-94. https://i94.cbp.dhs.gov/I94/#/home. The passport and visa stamp are not good enough since the visa stamp does not indicate the expiration date of your status, particularly with a Blanket L.
If an extension was filed since your last admission to the United States, have evidence of the extension. This could be a receipt notice or the approved I797.
The major concern for many employment based immigrants is that after they file the I-485 they are working using the Employment Authorization Document rather than the non-immigrant work visa. If you are in this situation be prepared to present the employment card as well as the I-485 receipts during any law enforcement/ICE encounter.
If you are a lawful permanent resident it is a violation of law not to carry your permanent resident card. Now more than ever, the ability to demonstrate you are legally in the United States is of the utmost importance.
Deferred Enforced Departure (DED) is not a specific immigration status. Individuals covered by DED are not subject to enforcement actions to remove them from the United States, usually for a designated period of time. The President has discretion to authorize DED under his constitutional authority to conduct foreign relations. When presidents have exercised their discretion to provide DED to a certain group of individuals, they generally direct the Executive Branch agencies, such as the Department of Homeland Security (DHS), to take steps to implement appropriate procedures to apply DED and related benefits, such as employment authorization, to those individuals. Only certain nationals of Liberia who previously had TPS as of September 30, 2007 are now covered by DED. To continue being covered by DED, such Liberians must meet the requirements of President Obama’s last DED directive.
Temporary Protected Status (TPS) is a temporary status designated by the Attorney General based on certain events, such as natural disasters or on-going armed conflicts. Other extraordinary and temporary conditions in the country may also result in a TPS designation. Nationals of a TPS-designated country, or persons having no nationality who last habitually resided in the country who can demonstrate that they have been continuously residing and continuously physically present in the U.S. since certain dates that are specified in the Federal Register notice announcing the Secretary’s decision to designate the country for TPS, may be able to apply to stay temporarily and get work authorization until the Secretary determines that conditions have changed in their country, allowing them to return home safely. TPS is not asylum, not an amnesty, and it does not lead to permanent residence. The program is intended to assist people in crisis situations and designations are usually for twelve to eighteen months, although they are often extended following the Secretary’s review of country conditions.
In Matter of Arrabally and Yerrabelly, 25 I&N Dce. 771 (BIA 2012), the Board of Immigration held that an individual who came into the US illegally but who is now on active Temporary Protected Status (TPS), who obtains a travel documents (advance parole) through USCIS and then leaves the US and reenters on that Advance parole, is eligible to adjust status in the United States if they have an immigrant visa available. The Federal Courts are split on whether an individual who initially entered the US without inspection and then was granted TPS can adjust status without applying for advance parole and travelling outside the United States.
Reuters is reporting that Rex Tillerson, has directed diplomatic missions to identify “populations requiring increased scrutiny.” In addition it was reported that he has ordered a “mandatory social media check” for all applicants who have ever been present in a territory controlled by an Islamic State.
Extreme vetting procedures are only one of many campaign promises made by the Trump Administration. We have already seen enhanced enforcement efforts directed at individuals with criminal records, final orders of deportation and visa overstays, referred to as surges. The Administration has run into a number of hurdles in implementing some of the procedures they hope to implement. Some of the procedures were part of the travel ban which have been put on hold.
The obvious concern is that the new process will result in significant delays in visa issuance. The delays for a case placed in administrative processing can be as long as six months. There has always been some hesitancy on the part of H-1B workers to travel outside the United States for a visa stamp. These delays will only reinforce the fear that if a worker travels and has to wait six months to return to the United States they will lose their job.
Equally important is the business travel of workers in multi-national companies facing delays in business travel to the United States. Homeland Security Secretary John Kelly testified before Congress in February and indicated that travelers who refuse to hand over requested information, including social media information could be barred from coming to the United States. Trump has also called for some type of test to determine whether a traveler embraces American values. How that will be determined is unclear.
Visa waiver travelers will not be exempt from the vetting procedures. Presumably there will be additional questions on the ESTA application as well as more questions at the port of entry. For the time being we have to wait and see how this will all play out. Expect rapid changes once the State Department moves forward with implementing changes. This will make resource planning difficult for companies relying on foreign workers for critical, large scale time sensitive projects. Expect delays!!