A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration lawyer. We serve clients in all U.S. states and overseas countries. (All information is not legal advice and is subject to change without prior notice.)

Contact: 732-632-9888, http://www.1visa1.com/

Friday, March 27, 2020

H-1B Employer Obligations Under COVID-19

COVID-19 has abruptly changed our way of life.  Employers are reminded that their obligations under the terms of the H-1B visa program including the obligation to pay the required wage continue to exist.  The following are some Q&As regarding this issue:

1.  Do the terms and conditions of the H-1B employment still apply in light of the COVID-19 pandemic?
Yes, the terms and conditions specified in the Labor Condition Application (ETA 9035) and the H-1B petition still apply in general unless exempt by the regulation or the government.

2.  Does an employer's obligation to pay H-1B employees the required wage continue to exist in light of the government's shelter-in-place policy?
Generally speaking, an employer must continue to pay H-1B employees according to the terms of the LCA.  There are special rules governing the obligation to pay for non-productive hours of the employee (see below.)

3.  Can the employer stop paying the employee if there is insufficient work?
If an employee becomes non-productive due to insufficient work, the employer must pay the employee the normal wages according to the LCA.  "Benching" an employee or failing to pay the required wages for non-productive hours is not permitted by law. 

4. If an employee requests for leave because of personal reasons, can the employer stop paying the employee? 
If an employee asks for a leave of absence or unpaid leave for personal reasons unrelated to the employer, the employer does not have to pay the employee.  For example, if an employee requests time for an extended vacation, a sabbatical leave, or caring of a sick relative, then the employer does not need to pay the employee the required wage. 

5. If an employee needs time to recover from an accident, must the employer continue to pay the employee? 
This situation is similar to an employee taking maternity leave. The employer's obligation to pay is governed by the employer's benefit plan or other applicable laws such as the Family and Medical Leave Act or the Americans with Disabilities Act. 

6. Can an employer furlough or bench an H-1B employee on account of a shelter-in-place order from the government authorities?
No, even under this situation, an employer must continue to pay the H-B employee the required wage. Otherwise, an employer could be subject to liability including fines, back wage obligations, as well as debarment from the DOL’s temporary and permanent immigration programs for a period of time.

7.  What if an employee has contracted with COVID-19 and become unable to work? 
The employer generally does not have to pay an employee who is not able to work because of reasons unrelated to the employer. However, if employer has a rule regarding quarantining an employee who has contracted COVID-19, this could be classified as a decision by the employer. In this situation,  the terms of the employer's benefit plan or other laws such as the Family and Medical Leave Act or the Americans with Disabilities Act may also apply. 

8. Can an employer reduce the hours of an H-1B worker or convert her status from full-time to part-time? 
Yes. In this situation, a material change has occurred and the employer must file a new LCA to reflect this change. Additionally, the employer is also required to file an amended H-1B petition to report this change to USCIS.  The change may only take effect upon the receipt of the H-1B petition by USCIS.

9. If an employer cannot afford to pay an H-1B worker the required wage or simply does not wish to continue the sponsorship, what must the employer do in order to terminate its obligation to pay?
The regulation provides that the obligation to pay the required wage stops if there has been a bona fide termination of the employment relationship. A bona fide termination means that the employer has notified USCIS that the employment relationship has been terminated so that the petition is canceled. Further, an employer is responsible for paying for the return transportation cost of the employee if the employer terminates the employee before the end of the approved period.

10.  If an H-1B employee is laid off due to COVID-19, can the employee change status or transfer to another employer? 
Yes, an H-1B employee who is laid off has a grace period of 60 days or until the end of the approved employment period, whichever is shorter, to file for a change of status or to seek sponsorship by another H-1B employer.

11. If an H-1B employee's work-site changes due to COVID-19, must a new LCA be obtained? 
If the new location is within the same metropolitan area or commuting distance from approved job site, a new LCA is not required.  However, a notice of the H-1B job opening must be posted at the new job site as usual.  DOL will consider the posting timely if the notice is posted within 30 calendar days after the worker begins work at the new job site location.








RFE/NOID Deadline Extended by 60 Days


USCIS just announced that it will grant a 60-day extension for the public to respond to any Requests for Evidence or Notices of Intend to Deny dated between March 1 and May 1, 2020.   A decision will not be made until after the 60-day period.  

However, applicants and petitioners should still respond to any RFE/NOID as soon as possible, as most immigration petitions are time sensitive.

Thursday, March 26, 2020

REAL ID Deadline Postponed to October 1st, 2021

DHS announced today that it will delay the enforcement deadline of the READ ID Act by one year to October 1st, 2021. The change is on account of the COVID-19 pandemic.  For many Americans, the most practical effect is that they will continue to be able to use their current State driver's licenses to board flights for domestic travel. 

PERM Labor Certifications Delivered via Email Starting 3/25/2020

Starting 03/25/2020, through 06/30/2020, Office of Foreign Labor Certification (OFLC) will issue PERM labor certification documents, including the certified Form ETA-9089 and Final Determination letter, electronically to employers and their authorized attorneys or agents in response to the COVID-19 pandemic.

Original labor certification documents will be sent to attorneys and employers via UPS regular delivery only if the parties are not able to receive electronic certifications.  

As usual, upon email receipt of an electronic copy of the certified Form ETA-9089, it must be printed, and then signed and dated by all parties before it can be used to support the Form I-140 (immigrant visa petition) with USCIS: the foreign worker, attorney/preparer (if applicable), and the employer.  

According to DOL, USCIS may consider this printed Form ETA-9089, containing all signatures, as satisfying the requirement that petitioners provide evidence of an original labor certification issued by DOL.

Sunday, March 22, 2020

Suspension of U.S. Domestic and Overseas Immigration/Visa Services Because of COVID-19


The COVID-19 pandemic has stopped most of the regular business activities of the world.  In response to the challenges related to the Coronavirus, various U.S. government agencies have also taken significant measures to protect public health. Both local and overseas immigration and visa services are also severely limited. 

Routine U.S. Consulate Visa Services Suspended 
As of 03/20/2020, the U.S. Department of State is temporarily suspending all routine visa services at all U.S. Embassies and Consulates.  All routine immigrant and nonimmigrant visa appointments are cancelled.  Urgent and emergency visa services are provided based on each embassy's or consulate's available resources. Visa applicants should refer to each embassy/consulate's website for further information. It should be noted that the ESTA/Visa Waiver Program is still available.  The Machine Readable Visa (MRV) fee is valid and may be used for a visa appointment in the country where it was purchased within one year of the date of payment.

ESTA/Visa Waiver Travelers May Extend Status 
Individuals admitted to the U.S. through John F. Kennedy International Airport, NY (JFK) and Newark Liberty International Airport, NJ (EWR) under the VWP/ESTA program who are not able to depart the U.S, before their authorized period of stay because of COVID-19 related issues can contact the Deferred Inspections office, (718) 553-3683,  at JFK, starting Monday, 03/16/2020, M-F, 9am to 4pm ET and request Satisfactory Departure for up to 30 days. Contact the CBP office of other airports for their specific procedures. 

USCIS Suspended Routine In-Person Services Until April 1st
As of 03/18/2020, U.S. Citizenship and Immigration Services has suspended routine in-person services, including all interviews and biometrics appointments, until at least April 1. USCIS will continue to adjudicate applications submitted by mail. USCIS will send out new appointment notices to applicants. Applicants may also request for new appointments with USCIS. Individuals who need emergency services must schedule an appointment through the USCIS Contact Center, 800-375-5283. 

Premium Processing Services Suspended
USCIS suspended premium processing service for this year's H-1B CAP petitions until May and June 2020.  As of 03/20/2020, premium processing service has also been suspended for all I-129 and I-140 petitions until further notice. 

Scanned and Photocopied Signatures Temporarily Allowed 
USCIS has temporarily relaxed the requirement of original signatures in immigration petitions.  Previously certain applications including the I-129 petition must be submitted with the original signatures of the petitioners and applicants.  

Friday, March 20, 2020

Reproduced Original Signatures Temporarily Accepted by USCIS

U.S. Citizenship and Immigration Services today announced that, due to the ongoing COVID-19,  the agency will accept reproduced original signatures in all immigration applications and petitions, including the Form I-129, Petition for Nonimmigrant Worker, for submissions dated March 21, 2020, and beyond.  

USCIS already accepts reproduced original signatures in some forms. This means that a document may be scanned, faxed, photocopied, or similarly reproduced provided that the copy must be of an original document containing an original handwritten signature,  Even for forms that require an original “wet” signature, per form instructions, USCIS will accept electronically reproduced original signatures for the duration of the National Emergency. This temporary change only applies to signatures. All other form instructions still apply.

Applicants who submit documents bearing an electronically reproduced original signature must also retain copies of the original documents containing the “wet” signature.  USCIS may, at any time, request the original documents, which if not produced, could negatively impact the adjudication of the immigration benefit.

Tuesday, March 17, 2020

All In-Person Immigration Appointments Cancelled till April 1

USCIS is suspending all in-person services at its local offices on account of the Coronavirus until at least April 1 including:

-  Naturalization tests
-  Naturalization ceremonies
-  Green card interviews
-  Other in-person interviews
-  Asylum office appointments
-  Biometrics/fingerprinting appointments


USCIS field offices will send out notices and  new appointment notices to applicants and petitioners affected by this temporary closure.

USCIS is still open for emergency services such as emergency travel documents.  If you have an emergency service request, contact the USCIS Contact Center at 1 (800) 375-5283.

Overseas Visa Appointments

Many American Consulates are also suspending visa interview appointments.  Some of them provide only limited services.  Overseas visa applicants should contact their local American Consulate offices to find out if they are open for business. This includes immigrant visas and all nonimmigrant visas such as student visas (F-1, M-1), employment visas (H-1B, O-1, R-1, L-1), temporary visitor visas (B-1, B-2), etc.

Premium Processing Suspended for FY 2021 H-1B CAP Cases

Premium processing service for FY 2021 cap-subject H-1B petitions will be suspended temporarily, according to a recent USCIS announcement.  

For applicants who are requesting for a change of status from F-1 nonimmigrant status to H-1B, premium processing service will be resumed no later than May 27, 2020.

For all other cap-subject H-1B cases, premium processing will be resumed on or after June 29, 2020.


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For all other non-cap H-1B petitions, including extension / change of status, change of employer, amendments, etc., premium processing service continues to be available. 

Premium processing service requires an additional filing fee of $1440. In return, USCIS promises to issue a decision within 15 days or refund the additional filing fee. The decision could be an approval, a request for evidence or a denial.

April 2020 Visa Bulletin: Philippines Family Categories Advance


In April's Visa Bulletin, there are moderate advancements in both Family and Employment visa categories.  EB-1 Worldwide and India advances 3 months and 2 months respectively.  EB-2 China advances 1 month. All Family categories advance for the Philippines.  Family 2nd is still current for all countries.

AD: Dates for Final Action (Green Card Approval)              FD: Dates for Filing Applications Only

      Family
Other Countries
      China
India
Mexico
Philippines
F1
AD
01/01/2014
01/01/2014
01/01/2014
09/22/1997
03/01/2010
FD
09/01/2014
09/01/2014
09/01/2014
12/01/1999
11/01/2010
F2A
AD
      C
      C
      C
      C
      C
FD
02/01/2020
02/01/2020
02/01/2020
02/01/2020
02/01/2020
F2B
AD
11/01/2014
11/01/2014
11/01/2014
12/01/1998
02/01/2010
FD
07/01/2015
07/01/2015
07/01/2015
08/01/1999
10/01/2010
F3
AD
02/01/2008
02/01/2008
02/01/2008
05/08/1996
05/15/2000
FD
10/01/2008
10/01/2008
10/01/2008
07/15/2000
15/01/2001
F4
AD
07/01/2006
07/01/2006
12/22/2004
03/15/1998
05/01/2000
FD
07/25/2007
07/25/2007
08/22/2005
01/15/1999
01/01/2001

1st: Unmarried Sons and Daughters of Citizens (about 23,400 per year).
2A: The 2 "A" preference is for Spouses and Children (under 21 & unmarried) of LPR's.
2B: The 2 "B" Preference is for Unmarried Sons and Daughters (21 or older) of LPR's.
3rd: Married Sons and Daughters of Citizens (about 23,400 per year)
4th: Brothers and Sisters of Adult Citizens. (about 65,000 per year)

Employment
Other Countries
China
El Salvador
Guatemala
Honduras
India
Mexico
Philippines

Vietnam
EB1
AD
06/01/2019
06/08/2017
06/01/2019
05/01/2015
06/01/2019
06/01/2019
06/01/2019
FD
C
10/01/2017
C
03/15/2017
C
C
C
EB2
AD
C
09/01/2015
C
05/25/2009
C
C
C
FD
C
08/01/2016
C
07/01/2009
C
C
C
EB3
AD
01/01/2017
04/15/2016
01/01/2017
01/22/2009
01/01/2017
01/01/2017
01/01/2017
FD
01/01/2019
03/01/2017
01/01/2019
02/01/2010
01/01/2019
01/01/2019
01/01/2019
Other Workers
AD
01/01/2017
07/01/2008
01/01/2017
01/22/2009
01/01/2017
01/01/2017
01/01/2017
FD
01/01/2019
08/01/2008
01/01/2019
02/01/2010
01/01/2019
01/01/2019
01/01/2019
EB4
AD
C
C
07/15/2016
C
01/22/2018
C
C
FD
C
C
08/15/2016
C
C
C
C
EB5
AD
C
05/15/2015
C
01/01/2019
C
C
02/08/2017
FD
C
12/15/2015
C
C
C
C
C

1st: Priority Workers (Extraordinary ability aliens, multinational companies executives/managers, outstanding 
prof./researchers)
2nd: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability.
3rd: Skilled Workers, Professionals, and Other Workers (Unskilled.)
4th: "Special Immigrants" (Religious & others)    
5th: Employment Creation (Investors)

What happens if the Final Action Date is "current" or later than the Filing Date? 
If this happens in a particular immigrant visa category, applicants in that visa category may file using the Final Action Dates chart during that month.

For Family-Sponsored Filings:
In the F2A category, there is a cutoff date on the Dates for Filing chart. However, the category is “current” on the Final Action Dates chart. This means that applicants in the F2A category may file using the Final Action Dates chart for April 2020.

For all the other family-based preference categories, you must use the Dates for Filing chart in the Department of State Visa Bulletin for April 2020.

For Employment-Based Preference Filings:
For all other employment-based preference categories, you must use the Dates for Final Action chart in the Department of State Visa Bulletin for April 2020.