On October 20, 2017 the US Department of Homeland Security Office of Inspector General (OIG) release a report titled “USCIS Need a Better Approach to Verify H-1B Visa Participants”. The audit conducted by the OIG reportedly found that USCIS site visits “provide minimal assurance” that both H-1B petitioners and respondents are compliant under immigration laws and regulations. In short, USCIS site visits do not establish sufficient evidence to determine whether a petition is fraudulent.
Flaws in Site Visits
The report found several flaws in the current process of USCIS H-1B site visits. Firstly, USCIS conducts a limited number of site visits during the year, and visits were found to be limited and incomprehensive. Additionally, OIG reports that USCIS does not place barriers on petitioners that previously abused the H-1B program. The OIG also criticizes USCIS for undeveloped training for field officers, who often underreport important site visit findings. Finally, the report claims that USCIS lacks means to collect, analyze, and report data related to the effectiveness of site visits on the H-1B program.
The OIG report made four recommendations to improve the USCIS site visit program:
Develop a process to collect and analyze complete and accurate data for all H-1B site visit activity;
Identify data and assessments obtained through site visit programs post adjudication and implement measures to systematically share this information with external stakeholders as appropriate;
Conduct an assessment of the H-1B Administrative Site Visit and Verification Program;
Develop comprehensive policies across Directorates to ensure adjudicative action is prioritized on fraudulent or noncompliant immigration benefits identified by the H-1B ASVVP and targeted site visits.
The US Department of Homeland Security provided recommendations as a means to improve the USCIS H-1B system. However, the recommendations could mean stricter and more frequent visits to H-1B beneficiaries.
If you have traveled domestically in recent months, you probably noticed signs posted by the Transportation and Security Agency (TSA). The posting notifies passengers of new regulations for acceptable state identification requirements for travel within the US. Due to the REAL-ID Act (2005), TSA security agents will no longer accept IDs, or driver’s licenses from certain states. Since airlines are federally regulated agencies, Congress can create new standards to ensure traveler safety. The federal act creates minimum security standards for obtaining state identification, rejecting some state’s loose policies for obtaining driver’s licenses. Starting January 22nd of next year, TSA agents will require an additional form of identification if an adult passenger 18 or over possess a driver’s license or state issued ID from the following states:
Kentucky, Maine, Minnesota, Missouri, Montana, Oklahoma, Pennsylvania, South Carolina, and Washington
What if I have a Permanent Resident Card?
If you reside in one of the above states, then your state driver’s license will not be adequate to pass through airport security for a domestic flight. If you are traveling within the US, a permanent resident card is an acceptable form of ID. Additionally, if you possess a government issued foreign passport, DHS trusted travelers card (e.g. Global Entry Card), or a USCIS employment authorization card you may use those forms of identification to fly within the US. According to DHS, “Aliens lawfully admitted for permanent or temporary residence, aliens with conditional permanent resident status, aliens with an approved application for asylum, and aliens who have entered the United States as refugees are eligible for a full-term REAL ID license or identification card.” It may be beneficial to carry more than one form of ID to avoid any inconvenience while passing through security.
The Real-ID standard may still affect residents of states not included in the above list. Many states not included in the list do not meet the minimum requirements under the law, but the federal government has granted limited extensions for certain states. Once you have made your travel arrangements, it is important to stay updated on the current list of unqualified state IDs.
Around the world, foreign nationals are being targeted by immigration scams. The threat is so prevalent and expansive that the www.uscis.gov reserves an entire section of the website for immigration scam protection and prevention. USCIS requires monetary payments from visa applicants for a variety of filing fees and other expenses. Those who are awaiting decisions on their pending application can be especially vulnerable to USCIS scams. Here are a few things to look out for in potential scammers:
The caller informs you of an issue with your application, but requires payment over the phone
USCIS will never request payment through the phone or via email. If the scammer is impersonating a USCIS officer, they will attempt to persuade you of the immediate necessity of funds for your eligibility approval. However, genuine USCIS requests for payment (if any to begin with) will always be relayed through a letter via USPS on official USCIS stationary.
Award of Lottery Visa or Green Card by U.S. State Department Email
There are several scam website that promote false opportunities for employment or expedited visa approval opportunities. Similarly, there are websites that falsely claim to be affiliated with USCIS and other U.S. departments. Each official government website ends with a .GOV (e.g. uscis.gov). Additionally, USCIS will never ask for an applicant to pay to download a USCIS form. If you are asked to provide money for access for an immigration form or any supplemental information, you may be on a fake website impersonating to be a USCIS website.
If you are unsure of the validity of a certain form, you can contact your local USCIS office for verification or can call USCIS customer service at 800-375-5282.
A request for evidence (RFE) is issued by the USCIS to request additional documents and/or information to make a final determination for a case. A RFE can be issued either due to lack of required initial evidence or if the USCIS officer requires additional documentation and/or evidence to determine the applicant’s eligibility for the benefit sought. The RFE will specify the documents or supplemental evidence required to complete the application or petition. The RFE includes both a strict deadline (generally 84 days) and location for submission of the requested evidence and/or documentation. The petition or application will be “held in suspense” until the deadline is met.
This March, USCIS released a memo questioning if a “computer programmer” would qualify for H-1B based on just the information contained in the Occupation Outlook Handbook (OOH), especially in cases where the beneficiary is being offered Level 1 wages. The policy memo, instead, instructs the employer to provide other evidence to establish that ‘computer programmer’ is a specialty occupation. Following the release of this memo, USCIS issued RFEs for almost all H-1B petitions filed for positions with Level 1 wages.
Entry Level Position and Level 1 Wage
Every H-1B petition is filed with a Labor Condition Application (LCA) on which the employer must choose a level wage for the position. The lowest level wage is Level 1 and the highest is Level 4. As per National Prevailing Wage and Helpdesk Center (NPWHC) worksheets, the wage level is determined by the education, experience, supervision, and skills required to perform the duties of the position. Every position starts with Level 1 wage and depending upon the requirements of the position, NPWHC has the ability to issue a prevailing wage as high as Level 4. However, in its RFEs, USCIS has failed to take into account these guidelines from NPWHC and has issued RFE without regard to the requirements of the position for which the H-1 B was filed for.
This upswing in the wage level RFEs is result of new administration’s BAHA (Buy American Hire American) policy. Employers filing the H-1B should take a close look at the requirements of the position before choosing the wage level. Also, those responding to the RFE must closely analyze the requirements of the position and the regulations and address the issues raised in the RFE. Please contact our office to schedule a consultation if you or your employer needs assistance in responding to Wage Level 1 RFE.
To work lawfully in the United States, you may need to obtain a Social Security Number (SSN) from the Social Security Administration (SSA). SSNs report wages to the government and determine eligibility for certain government programs.
Earlier last month, USCIS released a new Employment Authorization Document (EAD) that now includes the option to apply for work authorization and a social security number at once. Through an information collaboration between the Social Security Administration and USCIS, foreign nationals will no longer be obligated to apply separately for a social security number.
Previously, foreign nationals applied for Social Security Numbers in person at a local Social Security office. The in-person application process required proof of identity, proof of work authorization, two additional documents proving age, and of course a visit to a local SSA office. The process was often time consuming due to high demand and documentation requirements.
The new EAD form now includes additional questions to apply for a SSN or SSN replacement without an in-person trip to the SSA. Through the data sharing collaboration, USCIS will send the relevant EAD information to the SSA for processing. Once SSA receives the information from the USCIS, the applicant can expect to receive a social security card within two weeks.
In early August, USCIS released a memorandum defining the terms “affiliate” and “subsidiary” used in determining the American Competitiveness and Workforce Improvement Act (ACWIA) fee amount for H-1B petitions. Under the ACWIA, petitioners with 25 or fewer full-time employees (FTE) must pay a fee of $750 per H-1B petition, while petitioners with more than 25 FTE must pay a fee of $1,500 per H-1B petition. The funds collected provide U.S. citizen workers, permanent resident workers, and others the opportunity to receive job skills training.
Originally, vague guidelines for “subsidiary” and “affiliate” created confusion for both adjudicating officers and petitioners when determining the official number of employees for determining the fee amount. Some companies may have 15 employees as a single entity, but 27 employees with included subsidiaries and affiliates. The memo, which mirrors the L-1 definition, provides the following clarifying definitions for “affiliate” and “subsidiary”:
Affiliate: “(1) [o]ne of two subsidiaries both of which are owned and controlled by the same parent or individual, or (2) [o]ne of two legal entities owned and controlled by the same group of individuals, each individual owning and controlling approximately the same share or proportion of each entity.
Subsidiary: “a firm, corporation, or other legal entity of which a parent owns, directly or indirectly, more than half of the entity and controls the entity; or owns, directly or indirectly, half of the entity and controls the entity; or owns, directly or indirectly, 50 percent of a 50-50 joint venture and has equal control and veto power over the entity; or owns, directly or indirectly, less than half of the entity, but in fact controls the entity.”
Going forward, each H-1B petitioner should add all the FTE working directly for them and the FTE working with their subsidiary or affiliates of subsidiary to reach the correct number of FTE to determine the correct ACWIA fee. Case adjudicators will consider the full-time employment numbers based off these newly defined guidelines through the investigation of information provided during the petition (e.g. tax returns, employee records, public information).
An application for Adjustment of Status (AOS) for permanent residency requires many forms and documentation. One such document is a completed I-693 medical examination form. According to USCIS, applications for permanent residents require a medical examination and must provide a I-693 form completed by a designated civil surgeon (or doctor). The results of the medical examination sometimes determine admissibility.
INA Health Terms of Inadmissibility
The medical examination tests for grounds of inadmissibility based off health concerns of national interest. The civil surgeon will check for a varying disease and disorders that may restrict the applicant’s access to permanent residence. The INA lists the guidelines for inadmissibility. If the approved civil surgeon detects a “communicable” disease, the applicant will be found inadmissible. Additionally, an applicant must provide evidence of vaccines for “mumps, measles, rubella, polio, tetanus and diphtheria toxoids, pertussis, influenza type B and hepatitis B, and any other vaccinations against vaccine-preventable diseases recommended by the Advisory Committee for Immunization Practices.” However, there are vaccine exemptions for children under the age of 10. The INA also includes guidelines for applicants with serious mental or physical disorders that may be a threat to others. Applicants that abuse controlled substances will also be consider inadmissible.
Applicants must find a USCIS approved civil surgeon, or doctor. The approved doctor will conduct tests for certain communicable diseases as well as check recent vaccination documents for any missed vaccines. Applicants will provide the doctor with the I-693 form, which he or she will seal inside an envelope for submission to USCIS. The doctor can provide a photo copy of the examination for patient’s personal records, however USCIS will only accepted an official seal copy of the examination. Learn more about the validity of medical examinations here.
Under the direction of the executive order “Protecting the Nation From Foreign Terrorist Entry Into the United States,” USCIS announced plans to require interviews for adjustment of status (AOS) based on employment. Previously, only a small percentage of employment-based AOS required an in person interview. Now, USCIS will require all employment AOS petitioners with pending I-140 must submit to an interview. The sudden changes created many questions or concern. Months later, a CIS Ombudsman stakeholder call has provided clarification detailing the new procedural changes.
Interview Coordinators: SCOPS, NBC, and Field Offices
SCOPS, or the USCIS Service Center Operation Directorate, will continue to adjudicate petitions for AOS based on employment. However, interviews will be facilitated through the National Benefits Center (NBC). NBC will process each case, and coordinate with individual field office to schedule interviews. Applicants located near inundated field offices, like in Atlanta, should expect long wait times for a scheduled interview.
Once a person’s application has been adjudicated through SCOPS, the field office will not readjudicate the case. The field officers will ask questions about the nature of the employment based AOS. Possible questions include topics of:
Nature of Employment
Level of Education held
However, new types of questions may arise as the new initiative aims at “protect[ing] the integrity” of the immigration system.
The new in person interview requirement for employment-based AOS may have a lasting effect on the green card process. The top field offices, which includes Atlanta, have slowed processing times. Although USCIS claims the workload will not increase inefficiency, it may take time to realize the full impact of the interview requirement. Backlog will most likely increase. If you have any questions about adjustment of status complications, feel free to contact our office.
On the first of September, the Department of State (DOS) released new guidelines, published in the Foreign Affairs Manual (FAM), for the term “misrepresentation” for the purposes of deciding grounds for inadmissibility. Misrepresentation of intent to enter the US or receive a visa presents grounds for inadmissibility under INA. The new announcement eliminates the DOS 30/60 rule, which outlined whether a consular officer could presume that an applicant lied about their intentions based on actions that occurred after the applicant entered the US. Now, “conduct inconsistent with status” that occurs within 90 days of entry into the US, will be presumed as a purposeful misrepresentation of intent, creating grounds for inadmissibility.
Old 30/60 Rule
Previously within a period of 30 days, immigration officers assumed that any distortion of truth on applications for visas or entry into the US regarding the foreign national’s basis for admission was a purposeful misrepresentation of intent for visa. For example, if a non-immigrant entered the US on a visitor visa (like a B-1/B-2 visa ) and enrolled into an educational institution within 30 days of arrival or got married and filed an application for adjustment of status, the government previously assumed that the foreign national misrepresented their motive for entry. Under the old guidelines, inconsistent conduct that occurred between 30-60 days was not misrepresentative of the foreign national’s intent at application, but the conduct was eligible for investigation by an immigration officer.
New 90-Day Rule
The new FAM guideline extends the period of assumed misrepresentative intent to 90 days. Consequently, those who are in the US under the US Waiver Program, which allows admittance for a period of 90 days, are assumed to have willfully misrepresented intent if the file and application for change or adjustment of status. Those entering in a B-1/B-2 status or any other non-immigrant visa will also face a similar scrutiny. Under the new provision, consular officers are to presume misrepresentative intent for the entirety of the 90-days. If conduct occurs more than 90-days after entry or approval for US visa, the applicant is not presumed to have willfully misrepresented intent on their application.
The new FAM timeline presents an issue for many non-immigrants who have a pending application for adjustment or change of status. The new 90-day rule will not affect applicants on a dual intent visa like H-1B. However, if a foreign national changes status within 90 days of arrival, they may be at a risk of inadmissibility. It is noteworthy to remember that accusations of misrepresentation on an application for a visa or entry in the US is refutable. It is important to receive consultation before changing or adjusting status during the period of 90 days since under the new policy the consular offer may presume misrepresentation at any time, even after 90 days of entry, if the facts of the case support such a determination. This new policy, being broader than the previous one, would result in increased misrepresentation findings which under INA may make an individual permanently inadmissible to the US.
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.