Although this may seem quite simple, many with Form I-797A Approval Notices have experienced confusion regarding the expiration of their period of approved stay; and rightfully so. Recently, the United States Customs and Immigration Service (USCIS) began issuing approval notices with two different validity periods. Thus, the question remains: when does your period of stay really expire?
Period of Work Authorization vs. Period of Stay
E-1, E-2, E-3, H-1B, L-1 and TN nonimmigrants and their dependent family members may enter and stay in the United States for the period of time allowed by their specific work authorization. To give foreign workers and their families additional grace period between their arrival and departure from the United States, USCIS now includes, in some cases, an up to 10-day extension of authorized stay before and after the period of work authorization. The extension does not allow individuals to work during the up to 10 day extension period; employment during that time would result in a violation of their visa. With this extra time, workers will have the opportunity to settle their affairs before they begin work and prior to leaving the United States. However, the addition of a separate expiration date on the Form I-797A approval notice has resulted in much confusion in reporting for other important work authorization documents.
I-9 & I-94
To complete a work authorization document, or I-9, on or before their first day of employment, foreign nationals must provide information about their period of stay and period of work authorization. With the new extended period of authorized stay, many employees may be tempted to list the date of anticipated departure on their work authorization document. Employees must list their petition expiration date, found on the top of the Form I-797 in Section 1 of their I-9. Employers, however, will list the expiration of the Form I-94, or the end of the employees period of stay, on Section 2 of the I-9. Employers should ensure that their employee does not work past the expiration date of their work authorization.
Leaving the United States, even for a brief period of time, can be extremely complicated for foreign nationals. This risk increases if an individual wishes to leave the United States while an adjustment of status (AOS) application remains pending, because that individual runs the risk of abandoning their pending AOS application. To prevent this from occurring, advance parole serves as a valid immigration document for re-entry into the United States following international travel. Only a handful of visa holders may leave the U.S. with a pending AOS application without having first acquired advance parole (i.e. individuals and dependents in valid H-1B, L, and K3/4 status). For everyone else, applying for advance parole requires several months of processing times and valid documentation. However, if you are a citizen of Canada, you may lack the proper documentation to receive approval for both advance parole and an AOS.
When foreign national arrives into the United States, Customs and Border Patrol (CBP) provides them with a copy of their arrival/departure record or Form I-94. As one of the few exceptions, Canadian citizens do not receive an I-94 upon arrival into the United States. Thus, Canadian citizens are at a disadvantage because adjustment of status requires a record of arrival/departure i.e. Form I-94. To complete the application, Canadian citizens may request an arrival/departure record through the Deferred Inspection Site. Additionally, if you do not have any evidence of your legal entry, Canadian citizens may request their arrival document through a Freedom of Information (FOIA) request.
Although citizens of Canada may enter the United States without a visa, they must obtain advance parole before leaving the United States if their application for permanent residence is pending at the time of the departure. Unless the citizen of Canada holds one of the special classes of visa excluded from the advance parole requirement, the individual will abandon their pending AOS application upon departure. If you are unsure whether you require advanced parole before you upcoming trip, please feel free to contact our office for a consultation.
Recently, the United States Customs and Immigration Service (USCIS) released a policy memo endowing every adjudicating officer, and all USCIS employees, the power to issue a notice to appear, or NTA. With this policy change, USCIS employees may now initiate the removal and deportation of an individual that does not maintain lawful presence.
Although USCIS has always maintained the power to issue an NTA, previous procedures required USCIS employees to make written recommendations for removal notices to the United States Immigration and Customs Enforcement (ICE) for certain instances of unlawful presence. However, following the Executive Order Enhancing Public Security in the United States in 2017, the Department of Homeland Security (DHS) altered many immigration related priorities. In adherence to the new DHS standards, the policy memo now allows a more streamlined and swift deportation process. For both foreign nationals and employers, this policy memo can spell big trouble during renewal processing.
In addition to retaining it’s previous NTA procedures, USCIS will now issue NTAs for any of the application situations listed below, without the need to process the request through ICE.
Instances of reasonably suspected fraud or misrepresentation, including if an applicant misused any program related to the receipt of public benefits. (Regardless if the case is denied for reasons other than fraud, USCIS will initiate a removal request);
Instances of a criminally convicted or charged applicants, regardless if inadmissibility was determined by criminal record. (USCIS may also refer cases involving serious criminal activity to ICE before USCIS issues a denial of immigration benefits or NTA);
Instances in which USCIS denies an application for naturalization, on good moral character grounds because of a criminal offense; and
Instances of an unfavorable decision on an application, petition, or benefit request, in which the foreign national is not lawfully present in the United States.
Appeals & Consequences
Many foreign nationals at the mercy of the extreme backlogs encumbering USCIS face unlawful presence while waiting for an application decision. Under this new policy memo, these individuals are now at greater risk of deportation. Although aliens may appeal an NTA, the risk involved leaves many employers wary of hiring new foreign national employees or approving renewal requests. If you have any concerns about your lawful presence and or whether the policy memo effects you, please do not hesitate to call our office to schedule a consultation.
The Government of Canada recently issued the Express Entry Year-end Report 2017, outlining huge spikes in legal immigration to the country. The report, which highlights data collected through the country’s application management system for key economic immigration programs, expresses drastic changes in levels of foreign nationals admitted for residency in Canada. After a year and a half of uninviting immigration news out of the United States, and increasing animosity out of the Trump Whitehouse, professionals seeking to work in other countries are looking outside of the United States.
Unlike processing under USCIS, the Canadian Government uses a Comprehensive Ranking System (CRS) which ranks candidates based on a detailed points system. Under CRS, applications through Express Entry are selected through a dynamic pool based on total accumulated points. Applicants receive additional points for skills and education levels. For example, candidates with French proficiency receive extra points if they score high enough on a French proficiency test. The Canadian system aims to attract highly skilled workers through a short-term application process, which sets the country apart from the United States. Regardless of the systematic differences between the United States and Canada, the 2017 Canadian report shows a huge spike in legal immigration.
From 2016 to 2017, the Canadian government issued 200% more invitations for permanent residence to natives of India, and over 65,000 citizens of India were admitted to work in Canadian provinces. This spike in immigration from India came with similar spikes in admittance from countries like China and Nigeria. Unlike Canada, the United States has increased wait times for green cards, leaving many waiting years for a decision. As tensions continue to rise over the immigration debate in the United States, countries like Canada are benefitting from an influx of highly skilled workers to the detriment of the United States.
Each year, the U.S. Citizenship and Immigration Service (USCIS) releases an annual report outlining the major trends in the specialty occupation program. The report gathers data for the last fiscal year and analyzes major trends in comparison to previous years. The fiscal year 2017 report, which covers from October 1, 2016 to September 30, 2018, has many surprising trends. Overall, the number of approved H-1B petitions rose 5.9% from FY16. Although the last couple of years have been difficult for foreign nationals, the report proves that the United States remains an attractive location for a highly skilled foreign workforce.
Of the 403, 675 H-1B petitions filed in FY17, millennials and IT professionals were among the major winners. Two out of three petitions filed for workers between the ages of 25 and 34 (millennial workers) were approved. Nearly 70% of allapproved petitions were for IT professionals, including those in computer programming occupations. This comes as a positive indicator in light of the USCIS memorandum covering computer programming positions. The memo, challenged the classification of computer programing as a valid specialty occupation under the H-1B program. Consequently, many firms reported challenges to petitions that listed the occupations as “computer programmer.” Regardless, FY17 saw a steady stream of computer related H-1B workers.
In addition to rising numbers, the report details the country of origin distribution for petitions both for non-immigrants in the U.S. and abroad. Over 200,000 petitions came from citizens of India, the largest contributor. Far behind, petitions from citizens of China came in around 19,000, the second largest contributor. Of all petitions, over a forth of beneficiaries had a master’s degree; over 13,000 held a Ph.D.
Although the report indicates some rising trends in H-1B petition approvals, much of the change can be attributed to previously pending cases. The stricter regulations against legal immigration may not appear until the FY18 report is released. However, the report brings hope for some industries, especially those occupied in IT (i.e. computer programmers).
On May 30th, USCIS announced the launch of an online processing system, the Freedom of Information Act (FOIA) Immigration Records SysTem (FIRST). The online platform will allow users to submit, manage, accept FOIA requests online. Previously, FOIA requests only were processed through mail, fax, and email; documents were then transferred via mailed compact disc. USCIS will phase in the new processing system in the next coming months.
The FOIA allowed for greater government transparency and provided individuals with greater autonomy with their personal records. FOIA requests can be especially helpful for individuals who need a copy of their personal records, that may have been lost or damaged over the years. A FOIA request can also provide essential evidence for status renewal or adjustment of status. Files received from FOIA requests may also contain notes from adjudicating USCIS officers, which can be helpful for pending cases. Those with a coming appearance before an immigration judge will receive expedited documents if the requester presents evidence of the notice of appearance.
Benefits to Users
Through this new system, those who need to request a file permitted by the FOIA may create an account within myUSCIS to receive their file digitally. Through myUSCIS, users will receive notices regarding the status of their request. This online system will lower the associated costs of receiving and responding to FOIA requests through mail. This service is currently activated for those with myUSCIS accounts
The next phase of implementation, expected to roll out in the coming month, will feature an independent online service. Through this digital delivery option, the system will be open to all FOIA and Privacy Act requests. Once USCIS build out the digital platform, all stages of the FOIA request process will be available online (from initial request to document delivery). The announcement follows a series of initiatives from USCIS to increase paperless processing.
An arrest or conviction for driving under the influence (DUI) or driving while intoxicated (DWI) may mean big problem for those in the United States under a nonimmigrant visa. Once a U.S. consulate receives notice of the conviction of an alien for a DUI or DWI offense, consular officers will revoke the visa foil or “stamp.” Under most circumstances, an alien convicted of a crime with a maximum penalty of one year will undergo revocation processes. However, with DUIs and DWIs in particular, U.S. consulates may revoke a visa if “an ineligibility or lack of entitlement is suspected, or for virtually any other reason.” Meaning, those arrested, although not convictedfor DUI or DWI, may receive a notice of cancelled visa foil while consular officers determine whether a nonimmigrant is still eligible for their visa.
When a person enters the United States, they typically enter lawfully through a nonimmigrant visa stamp issued at a consulate abroad. If that individual is arrested or convicted for a DUI or DWI, the visa stamp is revoked by a U.S. consulate officer under prudential revocation. Thus, the visa foil will no longer be valid, and that individual would not be able to re-enter the U.S. the next time they travel abroad. The consulate should contact the individual once the visa foil has been revoked through email or phone. However, if the U.S. consulate is unable to contact the foreign national, the visa foil may be invalid without the individual’s knowledge making the visa ineligible for future re-entry.
A DUI or DWI will not change the legal status of the foreign national who has been arrested or convicted of a DUI or DWI, as long as they continue to maintain their status in the U.S. Primarily, revocation of a visa stamp impacts a foreign national’s ability to travel outside of the United States and return back using the existing visa. Therefore, those with prudentially revoked visas following a DUI or DWI must be sure to maintain their non-immigrant status. To travel with a prudentially revoked visa, a foreign national must obtain a new visa to return to the U.S. after a trip abroad.
On May 1st, a group of Informational Technology (IT) companies filed a lawsuit against the United States Customs and Immigration Service (USCIS) over a policy memo released in February. The group argues that the new scrutiny towards 3rd party placement of H-1B employees effectively prohibits smaller firms from participating in the H-1B program.
The policy memo primarily outlines new levels of scrutiny to be applied to companies that contract H-1B workers to a third-party worksite. Most importantly, H-1B employers must now provide evidence that, 1.) the H-1B beneficiary will be employed in a special occupation at the third-party worksite 2.) the petitioning employer will maintain an employer-employee relationship with the foreign work at the third-party job site. In addition, H-1B employers must provide USCIS with detailed “contracts and interneries” outling the conditions and schedule of the third-party stay. According to USCIS, the new level of scrutiny applied to third-party placements serves to protect American workers while adhering to the conditions set by President Trump’s Buy American Hire American executive order. Additionally, the memo further supports new USCIS efforts to crack down on H-1B violations.
Basis for Lawsuit
According to the San Francisco Chronicle, NAM Info, Derex Technologies, and Small and Medium Enterprise Consortium claim in the lawsuit that the requirement set forth by the February USCIS policy memo inhibits smaller firms from sustaining H-1B visas. The firms claim that it is impossible to comply with the requirements, and many firms have been denied petitions for the extension of H-1B visas. Because the firms operate on a business model that primarily depends on outsourcing labor to other companies, the USCIS third-party regulation may lead to eventual bankruptcy or closure. Additionally, smaller companies that depend on tech staffing firms will be at a disadvantage if the lawsuit is not successful. However, larger tech companies, like Apple and Google, are not impacted due to direct hiring of H-1B workers.
Early this month, a Memorandum of Understanding between the United States Customs and Immigration Service (USCIS) and the Department of Justice (DOJ) was released to the public. The memo announces new measures between the two agencies to increase information exchange to achieve the mutual goal of protecting U.S. workers. Together, the agencies aim to adhere to President Trump’s drive for the prioritization of U.S. workers over any class of foreign labor.
Under the Department of Justice, the Immigrant and Employees Rights section of the Civil Rights Division, among other things, works to protect workers through prosecuting employers who violate civil rights statutes or executive orders that prohibit discrimination based on nationality or citizenship status. Under the authority of USCIS, the Fraud Detection and National Security Directorate, among other things, investigates employers for potential “civil and criminal violations of immigration laws.” Together, these agencies accumulate a breadth of information focused on the prevention and cessation of employer discrimination based on nationality and immigration status.
To comply with outlook of President Trump’s Buy American Hire American executive order, both the Fraud Detection and National Directorate (under USCIS) and the Immigrant and Employees Rights section (under the DOJ) will now actively share data as it pertains to ending the “potential misuse of the employment-based immigrant and/or nonimmigrant visa programs.” The two agencies hope to protect qualified U.S. workers who are sometime vulnerable to discrimination by employers who prioritize foreign born workers. This collaboration expands upon a previous agreement between USCIS and the DOJ, which sought to share information regarding the E-Verify process. The memo marks a new wave of data sharing that will enable the two entities to collaborate. The Director of USCIS, L. Francis Cissna stated, “This agreement enhances the level of coordination among investigators who often work on the same issues at different agencies.”
Although there are some cases of discrimination against U.S. workers, employers often seek foreign national workers to fulfill droughts in the qualified labor force. Through data sharing, there may be a greater level of scrutiny, both from USCIS and the DOJ, towards employers who depend on foreign labor.
Companies offer benefits, or perks and compensations for services, as a means to attract highly skilled employees. As some of the most highly skilled professionals in the American workforce, H-1B employees are often recipients of attractive benefits packages, including paid vacation, health care, stock options, etc. For employers, whether the value of benefit services provided to H-1B employees contributes to the minimum wage requirement depends on several factors.
Benefits for H-1B Employees
According to federal regulation, benefits offered to H-1B employees must be the same benefits offered to similarly employed U.S. workers. Though the H-1B employee is a temporary employee, they may not be excluded from any type of benefits or services offered by the company. An H-1B worker may opt to receive different benefit packages than their U.S. counterparts or opt out of a service altogether. For example, an H-1B worker can choose not to enroll in the company’s health insurance plan due to the minimum contributions required to maintain a plan. In this case, a similarly employed U.S. worker may reap the benefits of the company provided insurance plan without risking compliance to federal regulations. If an H-1B petitioning company is multinational, and a H-1B worker travels in and out of the United States, the requirement for comparable benefits to U.S. workers depends on the period of the H-1B worker’s stay. Regardless of the benefits provided, the H-1B petitioning employer must comply with all non-discrimination regulations outlined in Article VII of the Civil Rights Act 1964 when allocating benefits.
Minimum Wage Requirements
To comply with federal standards, H-1B employers are required to pay their employees a prevailing wage adjusted for the occupational classification of employment. The monetary values of benefits provided may be counted towards the required wage:
Benefits provided as compensation for services may be credited toward the satisfaction of the employer’s required wage obligation only if the requirements of paragraph (c)(2) of this section are met (e.g., recorded and reported as “earnings” with appropriate taxes and FICA contributions withheld and paid). 20 CFR 655.731
If you have any questions or concerns regarding satisfying minimum wage requirements through benefit contributions, or any other questions regarding providing benefits to H-1B employees, feel free to schedule a consultation.