Dealing with a DUI/DWI: Revocation of Status

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.

Visa Revocation

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 The consulate should contact the individual once the visa foil has been revoked through email or phone.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.

Legal Status

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.

USCIS Suspends Premium Processing (H-1B/ FY19)

USCIS announced on March 20th that the service would temporarily end premium processing for all applications subject to the FY19, including cap exemptions for master’s and upper level degree holders. As the April 2nd deadline draws near, USCIS prepares to accept fiscal year 2019, or FY19 H-1B petitions. Due to the extreme traffic of new petitions, USCIS will not provide premium processing to insure efficiency during the busy processing time. However, cases that do not fall under the FY19 H-1B cap can still receive premium processing if eligible. The suspension of premium processing is set to end on September 10, 2018. Until then, USCIS notes that it will reject any submission of a “Form I-907, Request for Premium Processing Service, filed with an FY 2019 cap-subject H-1B petition.” USCIS intends to prioritize long pending cases during the suspension period.

Expedited Processing

Although premium processing will not be available, the USCIS website notes that expedited cases will still receive express consideration by USCIS officers. Those who qualify for expedited processing typically have extenuating circumstances that demand immediate attention. For instance, if there is a humanitarian need, or the position of employment is upon the request of the Department of Defense or other governmental agency invested in national security, the petition may qualify for expedited processing. To apply, qualified cases must submit an expedited service request through the National Customer Service Center and provide evidence that supports the claim for expedited processing. USCIS will only consider expedited requests that meet certain qualifications, so including documentation of your special circumstances will help to ease the process. Regardless, the extremely high filing traffic during this time of year will likely cause delays.

GOP Bill Could Expand H-1B Quota

Late last month, Republican Senator Orrin Hatch introduced Senate Bill 2344, or the Immigration Innovation Bill of 2018. If passed, the bill would expand the H-1B cap to nearly 195,000 professional workers annually.

Provisions

The chairman of the Senate Finance Committee, Hatch proposes an increase to the H-1B visa cap from 65,000 to 85,000. Hatch’s bill primarily aims to attract upper level professionals with Ph.Ds. or those with qualified degrees under the STEM Designated Degree Program List published by the Department of Homeland Security. Additionally, the new prioritization guidelines focus primarily on petitioners with bachelor’s or master’s degrees from U.S. higher education institutions. The bill would also allow for “market-based H-1B visa limits.” This “market” based approach would grant 110,000 more H-1B visas based on market demand in addition to the 85,000 cap extension. Therefore, the total annual H-1B limit could rise to 195,000. Hatch hopes to bolster the U.S. economy by providing domestic tech industries with enough foreign human capital to meet current market demand.

According to Bloomberg, this bill has already attracted negative attention from domestic interest groups. Many fear the potential American job loss in face of a raise in the number of H-1B recipients. However, the change would allow thousands more professionals to work under a H-1B visa, which limits many due to the 65,000 cap. Although “I-squared” is an exciting proposal for potential H-1B professionals, Senator Hatch must obtain bipartisan support in the Senate for the Bill to reach a vote.

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.