H-1B Employees and Benching

During difficult times, businesses have to take measures to cut costs by restructuring growth plans and reducing workforce. When it comes to H-1B workers, well-intentioned cost cutting by an employer can run afoul to federal regulations, resulting in civil and criminal penalties.

Department of Labor (DOL) sets guidelines and regulates H-1B employer’s wage payments to high skilled foreign workers. DOL requires that employers provide H-1B workers payment during non-productive time “caused by conditions related to employment”, which has been coined as the “no benching rule.” Non-productive time can include hours when workers lack assignments, are studying for licensing exams, or are training for the position. Employers often inquire about the timeline for non-productive payments under obligations outlined by DOL, as well as the conditions that elicit non-productive paid time. 

Non-Productive Time Caused by Employer 

The DOL requires payment for non-productive time depending on the cause of the non-productive status of the worker. Further, if the employer is responsible for conditions of the non-productive status, then the employer has an obligation to pay full wages during that period. Examples include plant shutdowns, lapses in assignment, lack of assignments, and holidays. 

Employee responsible for Non-Productive Time 

An employer does not pay wages for non-productive time if the non-productive status resulted from a H-1B worker’s voluntary request to leave employment. Examples include leave for family matter, maternity leave, and vacation. In cases involving hospitalization or family leave, employers must follow the rules of the Family and Medical Leave Act (FMLA).

When does the Non- Productive Time Begin? 

Employers are responsible for non-productive pay once the H-1B  worker has “entered into employment.” DOL loosely defines the beginning of employment as the moment when H-1B worker makes themselves available for work. Additionally, employers should review obligations to pay their H-1B workers (30/60 day rule) i.e. employers must provide payment for non-productive time 30 days after the worker is first admitted into the U.S., or 60 days after a worker, previously in the United States, receives eligibility for employment under a H-1B visa.

When does Payment Obligation Cease? 

An employer’s obligation to pay wages for non-productive ends if there is a “bona fide termination of employment.” This occurs once the worker has been terminated, the USCIS is notified of the termination, and the petition has been cancelled; see our previous blog post on Employer’s Responsibility for Terminating H-1B Employees for complete details.

DOL guidelines for wage payments for H-1B workers are extremely complicated. A foreign worker can file a complaint with the Wage and Hour Division (WHD) of the Department of Labor (DOL) to seek back wages owed under the law.  Such a complaint can result in a prolonged investigation of the employer by the DOL whereby they could ask an employer to document that none of its foreign workers has been benched.

We at Sharma Law Offices, LLC monitor any developments on H-1B front very closely and can guide employers on how to best meet their business needs while complying with the law. If you or your company have any question regarding payment obligations under Department of Labor regulations, feel free to contact our office.

Understanding Your Status: Lawful Status, Period of Authorized Stay, & Lawful Presence

A foreign national’s legal status at the time of a change, extension, or adjustment of status can influence the outcome of an immigration matter. An error in maintaining legal status may prevent the foreign national from receiving the desired immigration benefits. It is important to understand your current legal status and how it may determine your chances for change, extension, or adjustment of status.

 Lawful Nonimmigrant Status

Foreign nationals in lawful nonimmigrant status possess an unexpired arrival/ departure form (I-94) issued by the U.S. Citizenship and Immigration Service (USCIS) or U.S. Customs and Border Protection (CBP). A valid I-94 by itself does not grant a valid status. Foreign nationals must also maintain lawful status by adhering to guidelines set by their visa classification. For example, H-1B visa holders must maintain employment with their petitioning employer during the period of I-94 validity. Failure to satisfy visa regulations will result in a loss of lawful nonimmigrant status.

Period of Authorized Stay

If an application to request change or extend status is filed on behalf of an foreign national before his/her status expires, the foreign national may be in a “period of stay authorized by the Attorney General.” A good example of this would be where a petition to extend the H-1B is filed on behalf of the foreign national before his/her I-94 expires and the petition remains pending with the USCIS awaiting adjudication, after the expiration of the I-94. 

A nonimmigrant maintains a period of authorized stay as long as the application is still pending a decision even though, under certain circumstances, they may fall out of status. If the USCIS eventually approves the pending application or petition for extension or change of status, the foreign national retroactively transitions into status.

Similarly, those with a pending application for adjustment of status without the underling non-immigrant status are generally in period of authorized stay while the application for adjustment of status is pending with the USCIS.

Out of Status & Unlawful Presence

Foreign nationals not in period of authorized stay or not maintaining lawful nonimmigrant status are considered unlawfully present in the U.S and maybe out of status. A good example of unlawful presence would be a scenario where a foreign national with an expired I-94 card continues to be present in the U.S. Such a foreign national would accrue unlawful presence from the date their I-94 expired, and would be subject to re-entry bar after departing the U.S. Unlawful presence for a period longer than 180 day will result in three-year ban from the U.S. If the person was unlawfully present for a period of one year or more, then the person is banned from the U.S. for a period of ten years. It is important to understand the subtle distinction between out of status and unlawful presence. A person with a valid I-94 who fails to maintain his/her status is out of status through not unlawfully present in the U.S. (hence not accruing the unlawful presence inadmissibility bar). However, it would be hard for them to obtain future immigration or visa benefits.

For foreign nationals with a timely filed application or petition for extension, change, or adjustment of status, the unlawful presence begins on the denial date. Foreign nationals who are out of status or unlawfully present, are subject to removal from the U.S.


 It is imperative to understand your status before applying for extended stay or adjustment of status. The complexities between lawful status, out of status, period of authorized stay, and unlawful presence greatly impact the immigration process. If you have any question regarding your legal status, feel free to contact our office to schedule a consultation.

FOIA Request to Resolve Immigration Issues

The Freedom of Information Act (FOIA) gives any person the right to request access to records and documents from government agencies. Individuals with pending immigration cases can make a request under the FOIA for important records held by U.S. Department of State (DOS), Immigration and Customs Enforcement (ICE), Customs and Border Protection (CBP), and U.S. Citizenship and Immigration Services (USCIS), and others. Obtaining records through FOIA may assist in providing the necessary documentation to resolve a pending immigration case.

Helpful for Your Case

Over the years, copies of important records and documents are lost or damaged. A FOIA request can help restore lost copies and provide evidence of immigration history, which is necessary for status renewal or adjustment of status. Those seeking records may also benefit from obtaining access to materials of adjudication from previous cases (like notes from USCIS officers). Accessing these materials may aid in expediting pending or future immigration cases.

How to Make a FOIA Request

There are a variety of ways to request documents under FOIA, however the process may be difficult to navigate. Each request for an immigration document is filed through the agency designated to that particular record. For example, one must request an A-file (alien file) through USCIS by submitting a Form G-639, while CBP processes requests for I-94 records. It may take a long time before a request is processed. A high-volume request may take longer to process than a more directed request that require only a few documents, so the timeline of each request varies drastically.

Records NOT Covered Under FOIA

The Freedom of Information/ Privacy Act does not allow for complete access to all documents held by government agencies. FOIA contains 9 exceptions that include protections of individual privacy, national security, and trade secrets. If an immigration case is currently under investigation by a federal agency, like the FBI, the documents and records will not be public under FOIA.


It is crucial to possess required records and documents for your immigration case. FOIA facilitates freedoms of information, but in a complex and convoluted manner. It can be difficult to know which documents you need, and from what federal agencies. Sharma Law Offices can assist you with navigating your FOIA request for records.


Steps to Replace Lost Passport with U.S. Visa

Losing a passport with a valid visa, particularly in a foreign country, is always a huge setback especially for those who are on a short vacation and must return to the U.S.  to resume their employment or to attend school.  Irrespective of the care one takes to guard important documents, every year many passports are stolen. If you notice that your passport containing a U.S. visa is either missing or stolen, it is important to follow these steps to obtain new documents.

File a Police Report

As soon as you realize your documents are missing, go to your local police station and report the loss. According to the U.S. Department of State, it is necessary have a copy of the police report detailing the missing or stolen passport to re-apply for a new passport & visa.

Report Missing Passport to Your Native Country

Obtaining a new passport will depend on your country of citizenship. Most countries have websites that assist in the reporting of a lost or stolen passport. You can contact your local embassy or consular section for your country of citizenship for more information regarding replacement of the lost documents.

Report Missing Visa U.S. Embassy Abroad

Contact the consular section of the U.S. Embassy or consulate abroad that issued your visa. Provide the office with as much identifying information as possible (Name, Date of Birth, Place of Birth, U.S. address, etc.) and indicate whether the visa was lost or stolen. Make sure you include any documentation of your original passport and visa (i.e. Digital scans of original documents). Once you have reported your lost or stolen visa, that visa will no longer be valid for travel to the United States. Even if you later find your misplaced visa, you must apply for a new visa at the U.S. Embassy or Consulate.

Reapply for U.S. Visa

You cannot replace your lost or stolen visa in the United States. To replace your lost visa, you must apply in person at a U.S. Embassy or consulate abroad. You will need to have documentation of your lost or stolen visa, including a copy of your police report.  

It is important to keep track of all important travel documents to prevent future issues. It is highly recommended that one should have a copy of one’s passport and visa as it would help the consulate locate the information in a timely manner.

Employment-Based Green Card Applicants to be Interviewed

Starting October 1, the U.S. Citizen and Immigration Service (USCIS) will require in-person interviews for adjustment of status (AOS) applications (I-485) based on employment (e.g., Form I-140) and refugee/asylee relative petitions. Under the direction of the January executive order “Protecting the Nation From Foreign Terrorist Entry Into the United States”, USCIS director James W. McCament hopes the interviews will preserve the “integrity” of the nation’s immigration system.

A History of Inefficiency

The required interview is not an altogether new procedure for immigration benefit applications. The USCIS has the power to mandate or waive an in-person interview for AOS applications. Overtime, USCIS officers found that the protocol slowed application turnaround without significantly aiding in fraud investigation. Therefore, AOS applications based on employment and refugee/asylee relative petitions generally received an interview waiver from USCIS officers. However, the current administration’s focus on “extreme vetting” led the USCIS to impose stricter guidelines for even the most transparent applications.

Longer Wait Times

Applicants with an employment based visas, among others, will now have to wait longer to obtain their green cards. In 2015, nearly 122,000 people transitioned from an employment based visa to a green card. For many of these cases, applicants received approval for lawful permanent residency within a period of six months. Soon, the new interview requirement will create backlogs within USCIS that will slow the application review process. USCIS’s increased workload following new “vetting” standards will decrease efficiency, and prevent many from obtaining approval for AOS applications in a timely manner.


Expanding interview requirements will not “improve the detection and prevention of fraud”. Instead, the new guidelines will make it difficult for legitimate applicants to receive green cards. The October implementation of the EO will create gridlock within the USCIS.

If you have questions regarding adjustment of status issues, please contact our office to schedule a consultation.    

Global Entry Enrollment Open for Indian Citizens

Travel to United States just became easier for citizens of India. In July, U.S. Customs and Border Protection (CBP) announced that India would be added to the list of approved Global Entry countries. According to the CBP, the Global Entry program allows expedited clearance for pre-approved, low risk travelers upon arrival in the United States. For approved travelers entering the U.S., Global Entry means reduced wait times in designated airports.

What are the benefits of Global Entry?

Global Entry is available at major U.S. airports and select international airports. Approved travelers can skip paperwork and long processing lines, and check in directly with a Global Entry kiosk. However, CBP retains the right to further inspect Global Entry travelers when entering the United States. Travelers enrolled in the Global Entry program can also benefit from TSA pre-check, which allows travelers to move quickly through security lines.

How Do I Get Global Entry Approval?

Besides U.S. citizens and U.S. legal permanent residents, only citizens of Colombia, the United Kingdom, Germany, Panama, Singapore, South Korea, Switzerland, Mexico, and (as of July) India are eligible for Global Entry. To be approved, you must create a Global Online Enrollment System (GOES) account and complete the online application. The application process includes: a non-refundable fee of $100, a thorough background check, and an in person interview at a Global Entry Enrollment Center. Additional requirements apply depending on country of origin. For citizens of India, applicants must:

  • Pay a ₹500 background check fee;
  • Submit additional information to the Passport Seva Portal;
  • Complete an in-person interview at a designate Passport Seva Kendra/Passport Seva Laghu Kendra (PSK/PSLK) location.

Approved Global Entry travelers must have updated passports and authorized visas. If you have any questions, we invite you to contact our office to receive consultation on visa renewal.

Citizenship for Foreign Born Children of U.S. Citizen(s)

Children born abroad to U.S. citizens are not automatically entitled to citizenship. If a child is born abroad, the legal citizenship status of one or both of their genetic parents determines the child’s entitlement for U.S. citizenship. Additionally, whether or not the child’s parents were married at the time of the child’s birth impacts the level of documentation required to acquire citizenship for the child.

Under the guidelines of section 301(c) of the INA, a child born outside of the United States to married U.S. citizen parents qualifies for citizenship if the parents were legally married prior to the child’s birth. If both citizens are deemed the legal parents of the child during or before the time of birth, the child qualifies for citizenship.

For children born abroad to married parents (of which only one parent is a citizen) the child’s parent must have lived in the United States for a period longer than five years, two of which occurred after the age of fourteen. If the child was born between December 24, 1952 and November 14, 1986, stricter guidelines apply regarding the acceptable citizenship of the single citizen parent.

Children who are born out of wedlock, or born to parents who are not married at the time of the child’s birth, are classified under separate guidelines. A child born out of wedlock to a U.S. citizen mother is considered a citizen if the mother resided in the U.S. for over a year before the child’s birth.

If a child is born abroad to a U.S. citizen father and non-citizen mother, who are not legally married at the time of birth, the father is required to provide “clear evidence” of his relationship to the child. Section 309 (a) lists requirements for both proof of a blood relationship to the child and a written agreement of financial support for the child. To acquire citizenship for the child born out of wedlock, the U.S. citizen father must also provide proof of a relationship before the child turns 18.

Rules governing citizenship is complex and needs careful research and understanding. Those with questions about Citizenship for their Foreign Born Children should discuss it with qualified immigration attorney. 

Stokes Interview for Marriage Based Green Card

“Stokes” derives its name from a Federal District Court decision, Stokes v. INS and refers to an interview process whereby both spouses of the marriage based green card application are interviewed separately by an immigration officer to determine if the marriage was entered in good faith.  While some jurisdictions follow ‘Stokes’ for all marriage based green card application filed within its jurisdiction, others follow ‘Stokes’ as a second interview if the officer, during the initial interview, is not satisfied about the bona fide of the marriage. 

How does the Stokes Interview work?

As described above, the Stokes Interview follows procedure set by the government following the Federal District Court decision. During the Stokes Interview the couple are separated from one another (their immigration attorney is allowed to be present) and are questioned individually and together by an immigration officer (IO). Each interview is recorded and the IO cross references the responses of each couple. The line of questioning is often invasive and may take several hours. After the interview, the couple is given the opportunity to explain any variations in their spouse’s answers. Although the process is time consuming, the interview is most effective if both spouses give as many honest details as possible. The more transparent a spouse is during the interview, the better chance of a positive outcome. If the couple’s answers match, the IO will approve the case. However, if the IO is not satisfied by the interview, they can deny the case.

What types of questions are asked?

Each individual interview varies depending on the circumstances of the case. One IO may have an entirely different line of questioning than one of their colleagues. Remember to be as honest as possible during the interview. Here are a few general examples of the Stokes Interview questions that may be asked about you or your spouse:

  • How did you meet?
  • How many doors are in your house?
  • Who gets up first? At what time?
  • What television shows do you watch?
  • What did you do after dinner last night?

What should you do before the interview?

To make the experience easy on both you and your spouse, make sure to be prepared. It is important for you to bring any proof of the span of your relationship, from photos to joint bank statements. It may be helpful to talk with your spouse before the interview to ensure you are both prepared to recall memories and information from years past. Also, your immigration attorney would be able to assist you prepare for the interview by conducting mock interview sessions. 

Immigration Law is one of the most unpredictable and complicated areas of laws with frequent unannounced changes.  As one of top rated law firms, we closely monitor any changes that effects our clients.  It is important to consult with an experienced immigration attorney before filing for any immigration benefit.  You are welcome to schedule a consultation with Sharma Law Offices to discuss your marriage based green card. 

Supreme Court Rules Citizenship Cannot be Rescinded Due to False Statements

Can a naturalized citizen have her citizenship revoked for making an immaterial false statement in her naturalization application? On June 22, 2017 the Supreme Court in Maslenjak v. United States decided that to rescind one’s citizenship due to false statement made during the immigration process, the statement has to be material. In other words, “the false statement so altered the naturalization process as to have influenced an award of citizenship.”

Divna Maslenjak sought refugee status in 1998 after a civil war broke out in Bosnia. In her immigration interview, Maslenjak testified that she feared of persecution from the Muslims due to her ethnicity and from the Serbs because her husband evaded service in the Bosnian Serb Army. Years later when Maslenjak applied for citizenship, she swore that she never made a false statement to gain immigration benefit or gain entry into the U.S. After she acquired citizenship in 2007, it was discovered that she did indeed provide false statement to a government official about her husband who had served as an officer in the Bosnian Serb Army during the war years.

In the lawsuit, the parties agreed that it is a crime to commit illegal act in connection with naturalization under 18 U.S.C. 1425(a). §1425(a) states that to secure a conviction, the government must establish that the defendant’s illegal act played a role in her acquisition of citizenship. The dispute lies in the nature of that connection. Maslenjak argues that the relationship must be causal. It is only a crime if the act contributed to her acquiring citizenship. The government argues a chronological relationship in which a crime is found when the act occurred during the naturalization process.

In district court, the jury was instructed to determine conviction based on whether Maslenjak made a false statement even if the statement did not affect the decision to approve her citizenship. The jury found her guilty and Maslenjak was stripped of her citizenship. The U.S. Court of Appeals for the Sixth Circuit upheld the jury instructions and affirmed the district court’s decision.

The Supreme Court in a unanimous ruling vacated the Sixth Circuit’s judgment. The Court determined that statute §1425(a) strips a person of his/her citizenship when that illegal act contributed to his/her naturalization, not when s/he committed a crime during the naturalization process. In such cases, as the Court concluded, the jury should be instructed to decide on whether the false statement influenced the award of citizenship in a single, significant way. The jury must assess how a reasonable government official is influenced in his application of the naturalization law by the set of facts.

The Supreme Court by its decision made it harder to strip naturalized Americans of their citizenship.  The decision in Maslenjak does not give a blank check to applicants to lie on their naturalization applications, but does provide some relief to those who undergo denaturalization by placing the burden on the Government to prove materiality.

Expedited Naturalization for Spouses of U.S. Citizens Working Abroad

A spouse of a U.S. citizen must meet certain requirements in order to be eligible for naturalization, including residing in the U.S. for at least three years, be physically present for half of that time, and not be abroad for more than six months at a time. The exception to these requirements is Section 319(b) of the Immigration and Nationality Act (INA).

Section 319(b) allows the spouse of a U.S. citizen to apply for citizenship expeditiously if the citizen spouse is “regularly stationed abroad” in a qualifying overseas employment. “Regularly stationed abroad” does not necessarily mean permanent assignment on the part of the citizen spouse. However, the assignment cannot be short and/or casual. In addition, the citizen spouse is allowed to be in the U.S. during his/her spouse’s expedited naturalization as long as the citizen spouse is departing abroad not less than a year from then.

The provision of expedited naturalization accelerates the process for the non-citizen spouses because it waives the residence and physical presence requirements. This means that the non-citizen spouse does not need to reside in the U.S. continuously for three years. However, the non-citizen spouse must be a lawful permanent resident (LPR) during the time of filing the Form N-400, Application for Naturalization. Form N-400 can also be filed overseas with the Service Center and the Service Center will schedule the biometrics at the appropriate U.S. consulate overseas. However, the non-citizen spouse must travel back to the U.S. for the interview and provide supporting evidence of his/her relationship with the citizen spouse.

In addition to these requirements, the non-citizen spouse at the time of filing:

  • Must be a spouse of the U.S. citizen up until the time he/she takes the Oath of Allegiance;
  • Show intent to reside abroad with his/her U.S. citizen spouse within 30 to 45 days after naturalization;
  • Show intent to reside in the U.S. after the U.S. citizen spouse’s employment abroad ends;
  • Meet other basis requirements for naturalization like understand basic English (e.g. read, write, and speak); and
  • Be of good moral character, among other criteria;

Applying for expedited naturalization is complicated and at times can be a time-consuming process, especially for those whose naturalization interview will occur any time after the 90-day window opens to file a petition to remove the conditions of residence. Such applicants are encouraged to file the petition for removal of conditions of residence as soon as possible to avoid delays in naturalization since USCIS will adjudicate the naturalization application in conjunction with the petition for removal of conditions.  Failing to file petition for removal of conditions will lead to the applicant losing his/her LPR status without which an applicant is not eligible for naturalization.

Feel free to contact our team to learn more about obtaining citizenship through this provision, including learning more about what the qualifying employment is and the complete criteria for eligibility to apply for expedited naturalization.