H-1B Employer-Employee and Contract Requirements Relaxed

In a rather surprising move, USCIS has relaxed standards for adjudicating employer-employee relationships and contract and itinerary requirements for H-1B petitions. These changes mainly apply to consulting companies involving third-parties. 

In a policy memo dated June 17, 2020, USCIS rescinded two previous policy memos on employer-employee relationship and contracts and itineraries requirements. 

To prove the control aspect of the employer-employee relationship, petitioners only need to show one of the following: power to “hire, pay, fire, supervise, or otherwise control the work of” the employee. Under this new interpretation, simply hiring the employee is enough to meet this new standard.

As many companies that work through contracts know, is not uncommon for officers to issue a Request For Evidence (RFE) asking for third-party agreements to prove the employment's legitimacy. The same applies to evidence of day-to-day assignments. With this update, USCIS clarifies that such evidence is not required, but will be used if submitted.

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Some approved H-1B petitions are valid for a shorter time than was requested. This can happen if an officer judges it to be necessary, such as when the LCA certification period is shorter than the requested H-1B period. This practice will continue, though now the officer must include an explanation for the shortened valid period in the decision.  However, the validity period of an H-1B approval would not be shortened simply because of a short client contract.

"Benching" is also brought up. One of the requirements in a valid H-1B petition contract is to work full-time. It is prohibited for an H-1B employee to be "benched", or told not to work for a while, even if he is paid. Doing so will result in revocation of H-1B and a finding that the employee did not maintain status.

Overall, the burden of proof for H-1B applicants has been reduced. It is uncertain whether this is an effort to adhere to some recent federal court decisions or a precursor to harsher regulations in the pipeline.  One thing is for sure - policy changes will keep on coming. 

July 2020 Visa Bulletin: EB-1 India/China, F-1 Philippines Advance

Trump's overseas immigration ban has the side effect of freeing up many visa numbers, indirectly benefiting the applicants in the US.  There are some nice advancements in July's Visa Bulletin.

• EB-1 India cutoff date advances to 05/08/2017.  EB-1 China moves forward  to 08/22/2017. 
• EB-2 India advances to 07/08/2009; EB-2 China to 11/08/2015.
• EB-3 India and China also advance to 06/01/2009 and 06/22/2016 respectively.  Other EB-3 categories advance to 04/15/18.
• EB-5 is current for all countries including India.  China and Vietnam continue to have cutoff dates.
• Family 1st (F-1) also move forward.  Philippines advance 4 months to 06/01/2011.

To find out how to use the Visa Bulletin, please click here.

*Note - President Trump issued an Executive Order to bar overseas immigrants, H-1B, L-1, J-1 visas from entering the U.S. until the end of 2020, with exceptions. 

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

Family		Other Countries	China	India	Mexico	Philippines
F1	AD	07/08/2014	07/08/2014	07/08/2014	12/08/1997	06/01/2011
	FD	04/22/2015	04/22/2015	04/22/2015	01/08/2000	02/08/2012
F2A	AD	C	C	C	C	C
	FD	06/01/2020	06/01/2020	06/01/2020	06/01/2020	06/01/2020
F2B	AD	05/01/2015	05/01/2015	05/01/2015	03/08/1999	01/01/2011
	FD	02/01/2016	02/01/2016	02/01/2016	10/15/1999	08/01/2011
F3	AD	05/08/2008	05/08/2008	05/08/2008	07/08/1996	08/15/2001
	FD	04/15/2009	04/15/2009	04/15/2009	07/15/2000	04/22/2002
F4	AD	08/22/2006	08/22/2006	02/08/2005	06/01/1998	06/01/2001
	FD	08/15/2007	08/15/2007	10/22/2005	03/08/1999	01/08/2002

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	C	08/22/2017	C	05/08/2017	C	C	C
	FD	C	11/01/2017	C	08/01/2017	C	C	C
EB2	AD	C	11/08/2015	C	07/08/2009	C	C	C
	FD	C	08/01/2016	C	08/15/2009	C	C	C
EB3	AD	04/15/2018	06/22/2016	04/15/2018	06/01/2009	04/15/2018	04/15/2018	04/15/2018
	FD	04/01/2019	03/01/2017	04/01/2019	02/01/2010	04/01/2019	04/01/2019	04/01/2019
Other Workers	AD	04/15/2018	07/22/2008	04/15/2018	06/01/2009	04/15/2018	04/15/2018	04/15/2018
	FD	04/01/2019	08/01/2008	04/01/2019	02/01/2010	04/01/2019	04/01/2019	04/01/2019
EB4	AD	C	C	02/01/2017	C	06/15/2018	C	C
	FD	C	C	05/01/2017	C	C	C	C
EB5	AD	C	07/22/2015	C	C	C	C	05/15/2017
	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)

Texas Service Center Moved to New Address Effective 06/29/2020

USCIS announced that the Texas Service Center (TSC) will move to the following address on 06/26/2020.

Texas Service Center
6046 N Belt Line Rd.
Irving, TX 75038-0001

The new address will start to accept mail on Monday, 06/26/2020.  Many popular applications such as H-1B, L-1A, I-140, etc., are processed by the TSC.  Applicants should refer to the filing instructions when submitting applications to the TSC.

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Trump's Visa Ban Expanded to Cover H-1B, J-1, L-1 Visas Until December 31, 2020

As predicted, the White House released another proclamation by President Trump expanding the existing immigration ban imposed by Trump on April 22, 2020.  The initial ban restricted immigrants from entering the US for 60 days starting April 23, 2020.  Today's proclamation expanded the duration of the initial ban until December 31, 2020, effective June 24, 2020.  It means that nobody abroad can immigrate into the US for the rest of 2020. 

The new executive order - Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak - also added non-immigrant visas including H-1B, H-4, H-2B,  L-1A, L-1B, L-2, J-1 and  J-2 to the banned list. There are limited exceptions to the visa ban including:

- Individuals who are lawful permanent residents

- Spouses and children of US citizens

- Those who can provide temporary services essential to the US food chain supply

- Other individuals whose entry will benefit the national interest of the US

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It is important to note that the ban does not apply to non-immigrant workers who are present in the US.  For examples, if you are in H-1B status now, you may extend your status within the US.  Or if you are a multinational company manager present in the US on a valid visitor visa, you should be allowed to file a petition to change to L-1A status. But once you leave the US, you would not be able to obtain a visa to return.

The ban also does not apply to individuals who already have valid US visas or other legitimate travel documents such as advance parole travel documents and transportation letters as of the effective date of June 24, 2020.  Hence, if you are outside of the US now but possess a valid US visa, you should be able to return to the US.  

The language of the ban does not cover other non-immigrant visas such as F-1/ M-1, O-1, TN, R-1, E-1, E-2, E-3, etc.  Hence, foreign nationals should still be able to apply for these visas from abroad. If you have graduated from an academic program in F-1 status, you are still eligible to apply for employment authorization to gain work experience under the OPT and STEM OPT programs.  

Although the ban will expire on December 31, 2020, it can be extended again should the US Government determines that entry of foreign workers will be detrimental to the US labor market.  

Further, the proclamation also has built-in measures for the Departments of Labor and Homeland Security to promulgate new regulations to further limit the H-1B program and the EB-2 and EB-3 immigrant visa programs.  The EB-2 Visa Program is used mostly by foreigners with advanced degrees or exceptional ability.  The EB-3 Visa Program is used by foreign professionals with bachelor's degrees or at least two years of work experience.  The proclamation also asks the Secretary of Labor to initiate investigations in regarding to any violations of the H-1B Visa Program. 

Good News for Employment-Based Immigrant Visa Applicants

Are you waiting for your employment-visa priority date to be current? Are you troubled by the Executive orders, issued one after another during this uncertain time? Stay tuned, there is some good news for you! According to the Visa Chief of the State of Department, there are some extra visa numbers available for EB-1, 2, and 3 applicants in FY2021.

Mr. Charles Oppenheim, the Chief of the Visa Control and Reporting Division at the U.S. Department of State, anticipates that there will be increased Employment-based visas available for the coming fiscal year. Why? It is because Charles expects that there will be a notable amount of unused Family visa numbers from FY2020, due to COVID-related policy changes and global consular closure. In combination with the spillover of unused Family-based visa numbers from the prior year, we are expecting the "FY2021 Employment limit will be at least 200,000."  The normal annual visa quota for Employment categories is 140,000.  

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How many visa numbers for each Employment-sponsored category are we talking about for FY2021? Charles anticipates that EB-1, 2, and 3 will likely be getting an additional 17,160 visas each. Approximately an additional 4,260 visas will go to the EB-4 and EB-5 categories.

Charles also notes that the annual deduction of 700 EB-5 and 300 EB-3 visas based on the Chinese Student Protection Act will be completely satisfied in FY2020. That means the available visa numbers for China will not only increase because of the higher Employment annual limit, but also benefit from the normal application of a 7% per-country limit starting FY2021 (October 1, 2020). However, Charles also mentioned that there are several thousand Chinese cases awaiting additional visa documents at the National Visa Center (NVC). Charles calls on all EB-5 applicants (not just Chinese) with cases currently pending at the NVC to respond to notices for additional documents in time for their final interview to be scheduled as soon as Consulate Offices reopen.

In addition, the Final Action Date for EB-5 India is listed as "Current" in the July Visa Bulletin. That means Indians who are in the U.S. can file for adjustment of status (Form I-485) if they have an approved EB-5 petition (Form I-526). They can file for employment authorization (EAD) and a travel document (advance parole) as well.

Please note that this is not a guarantee that visa numbers will increase, according to Charles. Things could always change between now and September. Further, these additional visa numbers will also benefit adjustment applicants inside the US.  Overseas immigration has been banned by President Trump for the rest of 2021.  However, for the time being, this news is indeed a silver lining for all the employment-based visa applicants during this uncertain time.

Supreme Court Upholds DACA

Dreamers can now breathe a little easier. Years after the Trump administration first sought to end

DACA (Deferred Action for Childhood Arrivals), the split U.S. Supreme Court made the decision on Thursday to uphold the program.

DACA provides temporary protection to "dreamers", people that were illegally brought to the US as a child, granting them work authorization and other privileges. Specifically, it applies to current students or honorably discharged veterans who were under 31 years of age as of 2012. They must also have lived in America since January 1, 2020 and completed high school. DACA prevents deportation of many young people who know America as their home and have barely any memory of their birth country.  Individuals who have a serious criminal background or pose a threat to national security or public safety are not eligible for DACA.

The decision doesn't guarantee that DACA is immediately reinstated or here to stay. President Trump and the Department of Homeland Security (DHS) have both voiced their displeasure on the decision. It is likely that this ongoing discord will complicate DACA procedurally down the road, possibly through tightened requirements and adjudication.

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Furthermore, the decision blocked the rescission on the basis that proper rule-making procedures were not followed. Otherwise, Chief Justice Roberts writes that "the wisdom" of DACA policy and rescission "is none of our concern". Were the Administrative Procedure Act (APA) properly followed, the 5-4 decision could have been vastly different -- and there is nothing about this decision that stops DHS from launching another attempt to cancel DACA by following the proper legal procedures. 

There are approximately 700,000 to 800,000 DACA recipients in the US.  The actual number of dreamers can be in the millions, as many of them are afraid to come forward due to fear of apprehension or simply ignorance of their rights.  Past legislative efforts such as the DREAM Act have failed to materialize, but ultimately this is an issue that must be and should be addressed by Congress. 

Still, the decision is good news. DACA has not been eliminated, giving dreamers a chance to remain and work in the country. For now, we must wait for the release of more specific information to know when and how people can apply for DACA benefits such as employment authorization documents. 

New Rule Regarding Asylum Seekers' EAD Applications

DHS finalizes the proposed rule regarding processing asylum seekers' EAD applications today. The new rule, effective August 21, will have two main provisions:

(1) DHS no longer has to adjudicate I-765 Application for Employment Authorization Document filed by asylum seekers within 30 days; and

(2) Asylum seekers may file for their EAD extensions as early as 180 days before expiration (used to be 90 days).

This rule was proposed by DHS last year.

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Green Card Holders Traveling Abroad

Every year hundreds of thousands of foreigners become permanent residents of the United States. These permanent residents, or green card holders, often need to travel internationally soon after their arrival for various personal and business reasons.

Some may need to take care of their elderly parents; others may have to sell their assets from their home countries or wrap up their business affairs.  These new residents often wonder what documents are required for their international travel and safe return to the United States.

Documents needed to travel outside the United States

Generally, legal residents need valid passports from their countries of citizenship to travel to other countries.  For a passport to be valid, it must not be cancelled and be valid for at least six (6) months or longer.  For those individuals who do not have valid passports (e.g., asylees or refugees), they should apply for refugee travel documents to travel to a foreign country.  Further, the country that they are travelling to may also have other entry/exit requirements such as a visa to enter.  One should consult with these countries' embassies or the U.S. State Department to find out about these requirements.

Documents needed to reenter the United States

For permanent residents (aka lawful permanent residents, legal residents), they need to present their valid, unexpired Permanent Resident Cards (or "green cards")  to re-enter the United States after temporary travel abroad.  Upon arrival at a port of entry, a U.S. Customs and Border Protection (CBP) Officer will examine returning residents' permanent resident cards and any other identity documents, such as a passports, foreign national I.D. cards or U.S. Driver’s Licenses, etc., and determine if they  can re-enter the United States.

Would permanent residents lose their green card after international travel?

Normally, permanent residents are allowed to travel outside the United States for short periods of time.  However, if a CBP officer determines that a permanent resident has no intent to live in the the United States permanently, then the person could be found to have abandoned his/her permanent resident status.  A general rule is that if a resident has been absent from the United States for more than a year, the person is considered to have abandoned his or her green card. Absence of six months or longer creates a legal presumption of abandonment unless one can provide evidence to overcome this presumption.  Sometimes short but frequent trips may also serve as evidence of a person's giving up of his or her permanent resident status.  Ultimately, the DHS or the Immigration Court will look at factors such as family and community ties, employment history, income taxes, bank accounts, insurance documents, etc. to determine if abandonment has occurred.

Traveling aboard for one year or longer

Permanent residents who must be absent from the United States for longer than a year should first apply for a reentry permit on Form I-131. Generally speaking, securing a reentry permit before leaving the United States allows a permanent or conditional permanent resident to return to the U.S. after prolonged international travel.  Obtaining a reentry permit does not guarantee one's entry into the United States if the person is found to be otherwise inadmissible.  In the era of COVID-19, many legal residents are not able to return to the United States due to various travel restrictions. If you are not sure about your situation, it is important to first consult with an experienced immigration lawyer before making travel plans.