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.

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The Rise of Administrative Processing at U.S. Consulates in India and China

Since January 2018, our firm has seen a sharp increase in administrative processing for U.S. visa applications at consulates in India and China. This has caused significant delays in visas being approved and has resulted in foreign nationals spending an additional three weeks to two months in the country of the visa interview, as opposed to the typical two weeks.

According to the Foreign Affairs Manual (FAM), administrative processing “should be used to refer to clearance procedures or the submission of a case to the Department.”[i] There are three possible scenarios that could lead to a visa application undergoing administrative processing. These include national security, the Technology Alert List, and further consultation.

 

Administrative Processing for National Security Reasons

Prior to the visa appointment, each visa applicant will have her biographical data scanned in various national security databases. The results from these scans are available to the consular officer at the time of the visa interview. If the consular officer notices a “hit” on one of the databases, indicating that there is potentially adverse information about the visa applicant on a watchlist, then the consular officer “must “clear” the hit by seeking confirmation that the person applying for the visa is not the same person on the watchlist.”[ii] Once the hit has been cleared, the consular officer should approve the visa and change the administrative processing report on the Department of State’s online visa portal to say “visa approved”.

 

Administrative Processing for Technology Alert List Reasons

Visa applicants, especially those engaged in STEM professions, may also have their visa applications subject to administrative processing because their professional activities triggered concerns about the Department of State’s Technology Alert List.[iii]

“Technology Alert List: Administrative processing can be the outcome of certain visa applications…where the applicant’s intended commercial or academic activity triggers concerns about the possible illegal transfer of technology as defined in the Technology Alert List (TAL)….When a consul encounters an applicant who intends to pursue activities in one of the areas included on the TAL, the consul must submit an inquiry on the matter to DOS for a determination of whether the risk is significant enough to require visa denial.”

Once the consular officer has received the determination from the Department of State and the determination indicates that the visa applicant does not warrant risk significant enough to issue visa denial, the consular officer should approve the visa and change the administrative processing report on the Department of State’s online visa portal to say “visa approved”.

 

 

Administrative Processing for Further Consultation Reasons

The Department of State may also initiate administrative processing on a visa application because it requires “further consultation”. This provides a “catch all” explanation for why the consular officer has delayed the visa application and offers the consular officer a wide discretionary berth in the visa application process.

“Further Consultation: A consular officer can advise an applicant that further “administrative processing” is required in his or her case if the consul believes that there are circumstances that require further internal consultation within the mission or with DOS. In such cases, it is not the existence of a lookout hit that triggers the decision, but other circumstances that either have arisen during the interview or are based on information in the record that makes it impossible to render the decision at the completion of the interview.”[iv]

In these situations, sometimes the consular officer asks for additional information from the visa applicant about her job, education, or plans in the U.S. The information should be provided promptly and thoroughly. Once the information has been received and reviewed by the consular officer, the consular officer should approve the visa and change the administrative processing report on the Department of State’s online visa portal to say “visa approved”.

 

Wait Times for Administrative Processing

When a visa application enters administrative processing, it means that the visa applicant will be delayed in the foreign country. The length of the delay depends on the type of administrative processing, the work volume of the consulate, and the readiness with which the visa applicant provided requested additional information (if applicable). According to the Department of State, most administrative processing is resolved within 60 days of the visa interview.[v] Our firm has seen administrative processing take between three weeks and 60 days, with the longest waits in India. Visa applicants, especially those applying in India and China, should be prepared for administrative processing to delay their case.

 

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.

 

This blog is made available by the The Immigration Group, PC for educational purposes only in order to give you general information and a general understanding of the law, not to provide specific legal advice. For legal advice, please contact an attorney directly.

 

 

[i] See 9 FAM 601.7-4, Content of Written Correspondence, available at https://fam.state.gov/FAM/09FAM/09FAM060107.html.

[ii] Pattison, Stephen R. and Andrew T. Simkin, “Consular Processing in India,” The Consular Practice Handbook, 2012 Ed., AILA, June 2012. http://agora.aila.org/Product/Detail/37.

[iii] See Technology Alert List, available at http://www.bu.edu/isso/files/pdf/tal.pdf.

[iv] Pattison, Stephen R. and Andrew T. Simkin, “Consular Processing in India,” The Consular Practice Handbook, 2012 Ed., AILA, June 2012. http://agora.aila.org/Product/Detail/37.

[v] Administrative Processing Information, https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/administrative-processing-information.html.

 

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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 April Priority Dates For Filing Permanent Residency Applications

The following priority dates determine whether an applicant may file for permanent residency during the month of April 2018.

Category Country of Chargeability Priority Date Comment
EB-1 Worldwide Current Unchanged
EB-1 China January 1, 2012 Retrogressed 74 months
EB-1 India January 1, 2012 Retrogressed 74 months
EB-1 Mexico Current Unchanged
EB-1 Philippines Current Unchanged
EB-2 Worldwide Current Unchanged
EB-2 China August 1, 2014 Advanced 31 weeks
EB-2 India December 22, 2008 Advanced 1 week
EB-2 Mexico Current Unchanged
EB-2 Philippines Current Unchanged
EB-3 Worldwide Current Unchanged
EB-3 China June 1, 2015 Advanced 26 weeks
EB-3 India February 1, 2008 Advanced 56 weeks
EB-3 Mexico Current Unchanged
EB-3 Philippines January 1, 2017 Advanced 32 weeks

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 USCIS Drops “Nation of Immigrants” From Mission Statement

The United States Citizenship and Immigration Services (“USCIS”) recently changed its mission statement to remove the section describing the U.S. as “a nation of immigrants.” Before the recent change, the USCIS’s mission statement read:

“USCIS secures America’s promise as a nation of immigrants by providing accurate and useful information to our customers, granting immigration and citizenship benefits, promoting an awareness and understanding of citizenship, and ensuring the integrity of our immigration system.”

With this new change, the current mission statement reads:

“U.S. Citizenship and Immigration Services administers the nation’s lawful immigration system, safeguarding its integrity and promise by efficiently and fairly adjudicating requests for immigration benefits while protecting Americans, securing the homeland, and honoring our values.”

As noted by the bolded and underlined sections above, the new mission statement reflects President Trump’s “American First” foreign policy agenda (a policy which also instituted the Travel Ban and the proposed Border Wall).

The new mission statement also moves away from referring to agency applicants as “customers”. When asked about this, USCIS Director L. Francis Cissna announced in an email letter that use of the word customers “leads to the erroneous belief that applicants and petitioners, rather than the American people, are whom we ultimately serve.”

Overall, this change in mission statement echoes the heightened scrutiny that our firm has seen when dealing with responses from USCIS.

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.

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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 March Priority Dates For Filing Permanent Residency Applications

The following priority dates determine whether an applicant may file for permanent residency during the month of March 2018.

Category

Country of Chargeability Priority Date Comment

EB-1

Worldwide Current Unchanged

EB-1

China Current

Unchanged

EB-1

India Current

Unchanged

EB-1

Mexico Current Unchanged
EB-1 Philippines Current

Unchanged

EB-2

Worldwide Current Unchanged
EB-2 China December 8, 2013

Advanced 9 weeks

EB-2 India December 15, 2008

Advanced 1 week

EB-2

Mexico Current

Unchanged

EB-2

Philippines Current

Unchanged

EB-3

Worldwide Current

Unchanged

EB-3

China November 15, 2014 Advanced 8 weeks

EB-3

India January 1, 2007 Advanced 4 weeks
EB-3 Mexico Current

Unchanged

EB-3 Philippines May 1, 2016

Advanced 8 weeks

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.

Posted in Green cards, Immigration Law | Leave a comment