Employers Brace for Battle with the USCIS

As is widely known, employment-based immigration cases have come under increased scrutiny in recent times. For example, in March of 2017 the USCIS issued a policy memorandum indicating that the position of “computer programmer” is no longer considered a “specialty occupation” for H-1B visa eligibility. This runs contrary to decades of prior rulings otherwise.  As well, a sharp increase in the number and scope of Requests for Evidence (RFEs) are being issued for H-1B petitions, L-1 petitions, TN petitions, and other employment-based categories. These RFEs are occurring even on extensions, where the USCIS has previously approved the employer and the employee.

Here are some examples of USCIS reasons recently given to deny or challenge an H-1B, L-1, or TN petition or extension or a green card application:

  1. The occupation does not require a specific degree and therefore does not constitute an H-1B specialty occupation.
  2. The wage level is so low that the job cannot be an H-1B specialty occupation;
  3. The employee’s degree is not directly related to the H-1B or TN position;
  4. The knowledge or experience possessed by the employed is not L-1 specialized knowledge;
  5. The job duties do not qualify for the TN category under the listed occupation;
  6. The job that was sponsored for the PERM green card market test is not in the same or similar occupation as the present job held by the employee.

Presently it is difficult to obtain an employment-based approval from USCIS, at least without substantial push-back from the government.  In addition, employment-based green card cases now require an interview at the local USCIS office for the employee and his or her family. Interviews in employment-based green card cases were discontinued decades ago and this return to the interview phase reflects an effort by the USCIS to eliminate applicants at the final stage after many years of waiting.  As well, the reintroduction of an interview into the green card process certainly will slow the overall process even further.  It is critical that the attorney, the company, and the employee understand the critical issues relating to visa eligibility, so that a meritorious case can be successfully processed.

 

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USDOS Announces August Priority Dates For Filing Permanent Residency Applications

The following priority dates determine whether an employment-based applicant may file an I-485 adjustment application in the United States or a DS-230 application at a consulate abroad for permanent residency.

Category
World
China
El Salvador
Guatemala
Honduras
India
Mexico
Philippines
Vietnam
EB-1 5/1/16 1/1/12 5/1/16 1/1/12 5/1/16 5/1/16 5/1/16
EB-2 C 3/1/15 C 3/15/09 C C C
EB-3 C 1/1/14 C 1/1/09 C 1/1/17 C
EB-3 Other C 5/1/07 C 1/1/09 C 1/1/17 C

“C” indicates that the category is current, meaning that the application can be filed.  If a date is shown, then the priority date must be on or before that date in order for the application to be filed.

Dan White leads the law practice at The Immigration Group, focusing exclusively on work visas and green cards for companies and their employees. He is a graduate of Vanderbilt Law School and his writings have appeared in the National Law Journal and the Tennessee Bar Journal. Clients include corporations nationwide and in more than 60 countries.

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Porting Jobs Under AC(21) Using Form I-485 Supplement J

Summer is in full swing, which can often mean longer processing times at federal government agencies due to the workforce being on summer vacation. Employment-based green card applicants may experience longer processing time for their I-485 applications and, as a result, may consider “porting” job offers under the American Competitiveness in the Twenty-First Century Act of 2000 (“AC21”). By porting jobs, the green card applicant can change the offer of employment from one employer to another employer without the employer having to file a new Form I-140.

To lawfully port jobs, the green card applicant must fill a position in the same or a similar occupational classification as the job offer for which the Form I-140 petition was filed and the green card applicant’s I-485 application must have been pending for 180 days or more.   The determination of whether the new job offer is in the same or similar occupation is based on:

a)      The USDOL’s Standard Occupational Classification (“SOC”) system;

b)      The job duties of both positions,

c)      The skills, experience, education, training, licenses or certifications specifically required to perform each job,

d)      The wages associated with each position; and

e)      Any other relevant and credible evidence.

If a green card applicant believes that she qualifies for porting to a new job, she should consult a business immigration lawyer through her new job or individually to help her complete the Form I-485 Supplement J. Once the Supplement J is filed, it requests that the USCIS use the new job offer when making a decision on the green card applicant’s Form I-485 application. The green card applicant should  bring a copy of the Supplement J to the green card interview.

Before porting, a green card applicant should consider whether porting to a new job would affect an existing green card repayment agreement that she has with her current employer. If a green card repayment agreement is in place, there would most likely be monetary consequences for leaving the position before the green card is in hand. A green card applicant should speak to a business immigration lawyer to have the contract reviewed before making the decision to port.

For companies or individuals who would like to have their green card repayment agreement reviewed, please contact our firm to speak with an attorney about this service.

 

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Victoria Gentry is an associate attorney with The Immigration Group, P.C.  practicing exclusively in the areas of work visas and employment-based green cards. She first became interested in immigration law when her stepfather emigrated from El Salvador to the United States. Now she enjoys assisting corporate clients with a variety of immigration needs including international transfers, visa eligibility, and the green card process. She works primarily with professionals in IT, Engineering, Finance, Pharmacy, and Insurance.

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USDOS Announces July Priority Dates For Filing Permanent Residency Applications

The following priority dates determine whether an employment-based applicant may file an I-485 adjustment application in the United States or a DS-230 application at a consulate abroad for permanent residency.

Category World China El Salvador

Guatemala

Honduras

India Mexico Philippines Vietnam
EB-1 C 1/1/12 C 1/1/12 C C C
EB-2 C 1/1/15 C 3/15/09 C C C
EB-3 C 1/1/13 C 11/1/08 C 1/1/17 C
EB-3 Other C 5/1/07 C 11/1/08 C 1/1/17 C

“C” indicates that the category is current, meaning that the application can be filed. If a date is shown, then the priority date must be on or before that date in order for the application to be filed.

 

Dan White leads the law practice at The Immigration Group, focusing exclusively on work visas and green cards for companies and their employees. He is a graduate of Vanderbilt Law School and his writings have appeared in the National Law Journal and the Tennessee Bar Journal. Clients include corporations nationwide and in more than 60 countries.

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The USDOL Tightens Restrictions for H-1B Workers at Third-Party Worksites

Over the past few months, the U.S. Department of Labor (USDOL) has tightened restrictions for H-1B workers placed at third-party worksites. These changes are in accordance with the presidential administration’s “Buy American and Hire American” executive order.

In a policy memorandum from February 2018, the USCIS announced that it would require all U.S. employers to provide thorough “itineraries” outlining details of H-1B holders’ work at third-party worksites. These itineraries should include the H-1B holder’s duties, the H-1B holder’s qualifications to perform the job, the duration of the placement, and the reason for the placement. Furthermore, U.S. employers should anticipate having to prove that they have the right to control the H-1B holders’ work for the duration of the placement.[i]

In May 2018, the USDOL proposed changes to the Labor Condition Application (LCA) that would require the legal business name of the third-party worksite to be written in the LCA in order to be approved. Currently, the LCA only requires that employers list the addresses for all H-1B worksites, not the company name(s). Under the proposed changes, however, U.S. employers would be required to list all worksites at which there is a “reasonable expectation” of placement of H-1B workers. To accommodate this change, the USDOL predicts that it will need three times the number of hours in order to adequately assess and process this increase in information.[ii]

The end results of both the actual changes and the proposed changes would be increased processing time for H-1B petitions and increased costs for the employer. This is especially true for U.S. companies filing H-1B transfer petitions. An H-1B transfer petition, which currently takes a few weeks to file, will increase by an additional number of weeks. This may be a challenge for companies wanting H-1B workers to start their new employment on a tight timeline. Another consequence of these changes may be that third-party worksites lose H-1B workers who are placed at their company on a contract basis, which is a common practice in the IT industry. Third-party worksites may want to consider sponsoring H-1B-holding contract employees as a preventative measure against losing their services due to increased H-1B restrictions.

Our firm will continue to follow this development closely. If you would like to be included on future updates, subscribe to our firm’s updates by entering your email address on the right-hand panel.

[i] The USCIS seems eager to deny petitions on inability to prove this ground. Specifically in our practice, we have seen an increase in the number of Requests for Evidence that ask the U.S. employer to prove its right to control an employee in H-1B status. This is especially true for employees in H-1B status who work partially from home or travel to different third-party sites such as manufacturing plants or mines. As a best practice, a U.S. company should have a firmly outlined structure for how it manages and oversees employees working in different locations.

[ii] Currently, it takes 7 days for an LCA to be approved by the USDOL. If the USDOL’s estimate is correct, LCAs under the proposed rule would take 21 days to be approved.

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Victoria Gentry is an associate attorney with The Immigration Group, P.C.  practicing exclusively in the areas of work visas and employment-based green cards. She first became interested in immigration law when her stepfather emigrated from El Salvador to the United States. Now she enjoys assisting corporate clients with a variety of immigration needs including international transfers, visa eligibility, and the green card process. She works primarily with professionals in IT, Engineering, Finance, Pharmacy, and Insurance.

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USCIS Completes H-1B Cap Filing Intake

The USCIS states on May 15 that is has finished the initial data entry of all H-1B cap cases selected in the lottery. Selected petitioners are now receiving case filing receipts by mail.  Without indicating a time frame, the USCIS has also indicated that it will soon begin returning to petitioners by mail the unselected petitions and filing fee checks.

Dan White leads the law practice at The Immigration Group, focusing exclusively on work visas and green cards for companies and their employees. He is a graduate of Vanderbilt Law School and his writings have appeared in the National Law Journal and the Tennessee Bar Journal. Clients include corporations nationwide and in more than 60 countries.

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Who Pays the Fees in the Employment-Based Green Card Process?

When considering whether to sponsor a foreign national for a green card, U.S. companies should know who is responsible for paying which portions of the costs associated with the green card. This knowledge is especially vital for companies using green card repayment agreements, which indicate how much money is recoverable by the U.S. company if the foreign national resigns or is terminated before receiving the green card.

Generally, there is a three-step process to obtaining an employment-based green card for a foreign national: the PERM process, the I-140 Immigrant Petition, and the I-485 Adjustment of Status Application.

Who Pays the Fees for the PERM Process?

The government has indicated that the employer must pay all fees associated with the PERM process. This includes recruitment costs (posting the job in newspapers, online, on a college campus, etc.) and attorneys’ fees. U.S. companies should take this into consideration when writing a green card repayment agreement. If the foreign national resigns or is terminated before receiving the green card, these costs would not be legally recoverable regardless of when the foreign national leaves the company.

The exception to the requirement that the employer must pay the PERM process costs is when the attorney performing the legal work represents the employee but not the sponsoring employer. This rule often does not apply, however, because the attorney will usually represent both the foreign national and the U.S. company via dual representation.

 

Who Pays the Fees for the I-140 Immigrant Petition?

Either the employer or the employee may pay the costs associated with the I-140 petition. These costs would include legal fees, project costs, and government filing fees. The government does not regulate which party pays these fees. In a company’s green card repayment agreement, these costs are recoverable by the employer.

 

Who Pays the Fees for the I-485 Adjustment of Status Application?

Either the employer or the employee may pay the costs associated with the I-485 Adjustment of Status Application. These costs would include legal fees, project costs, and government filing fees. The government does not regulate which party pays these fees. In a company’s green card repayment agreement, these costs are recoverable by the employer.

Our firm recommends that companies have a well-drafted green card repayment agreement in hand before considering sponsoring an employee for a green card. For companies who would like to have their green card repayment agreements written or revised, please contact our firm to speak with an attorney about this service.

 

If you would like to be included on future updates, subscribe to our firm’s updates by entering your email address on the right-hand panel.

 

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Victoria Gentry is an associate attorney with The Immigration Group, P.C.  practicing exclusively in the areas of work visas and employment-based green cards. She first became interested in immigration law when her stepfather emigrated from El Salvador to the United States. Now she enjoys assisting corporate clients with a variety of immigration needs including international transfers, visa eligibility, and the green card process. She works primarily with professionals in IT, Engineering, Finance, Pharmacy, and Insurance.

Posted in Green cards, Immigration Law, PERM | Leave a comment