The Chicago attorneys of Zneimer & Zneimer PC reviewed the final regulations entitled Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers, 81 FR 82398-01, that the that the Department of Homeland Security published on November 18, 2016. These regulations interpreted several employment-based sections of the Immigration and Nationality Act, including those regulating employment of non-immigrant workers.
The updated regulations made some changes to the rules applicable to E–1, E–2, E–3, H–1B, L–1, or TN. They added up to 10 days of admission before the authorized work period begins, and up to 10 days of grace period after the work-authorized period ends. During these extra 10 days on both ends, the foreign worker may not work.
These extra days at the end of the authorized work period will be helpful to foreign workers and their families if they wish to leave the United States. However, Chicago attorney Sofia Zneimer cautions, that for workers and employers who wish to continue their work relationship in the United States, these additional days may cause issues if not properly monitored.
One thing to keep in mind is that these extra 10 days are not work authorized. This means that the employee will have an I-94 card that will include the additional grace period even though this period will not be work-authorized. Thus, unless both the foreign worker and the HR mangers overseeing the I-9s for their companies are mindful of this added grace period, they both can get in trouble, if the foreign workers inadvertently works during the grace period relying solely on the expiration of the foreign worker’s I-94. It is important to remember that the the top of the I-797 Approval Notice will reflect the actual work-authorized period, and not the I-94. An employee relying solely on the expiration of the I-94, who works during these extra days without authorization, can fall out of status for working without authorization. By permitting unauthorized work during the grace period, the employer will violate the immigration law subjecting itself to fines and penalties.
Important points for HR managers and foreign workers: Continue reading →
On March 31, 2017, USCIS rescinded a memorandum from December 22, 2000, called “Guidance memo on H-1B computer related positions.” According to USCIS rescinding this 2000 memorandum will prevent inconsistencies because it was based on outdated information about computer occupations. This new policy will affect our clients in Chicago and in other cities and states.
USCIS will now zoom in on computer occupations to scrutinize H-1B petitions for jobs with entry level wages. According to USCIS, “[t]hrough the wage level, the petitioner reflects the job requirements, experience, education, special skills/other requirements, and supervisory duties” citing to U.S. Dep’t of Labor, Emp’t & Training Admin., Prevailing wage Determination Policy Guidance (Nov. 2009). An employer cannot offer an entry level wage and argue that the “proffered position is particularly complex, specialized, or unique compared to other positions within the same occupation.” Therefore, USCIS will review the Labor Condition Applications to check whether the wage level corresponds to the petitioner’s representation of the position. An entry-level computer programmer position generally will not meet the “specialty occupation” requirement.
It will be more difficult to have H-1B approved for computer occupations even if the employer proffers a higher wage. USCIS states that according to the most recent edition of U.S. Dept of Labor’s Occupational Outlook Handbook, an “individual with an associate’s degree may enter the occupation of computer programmer.” This does not mean that all computer programming positions would automatically be ineligible for H-1B for failing the specialty occupation requirement. However, the petitioner must submit “probative evidence from objective and authoritative sources” that the position qualifies as an H-1B specialty occupation.
USCIS also will target positions that require a general purpose bachelor degree such as a business administration degree. Although such degree may be a prerequisite for a position, “requiring such a degree, without more, will not justify the granting of a petition for an H-1B specialty occupation visa.” The burden is on the petitioner to prove that the position is in a specialty occupation.
Therefore, employers that wish to file H-1B petitions for computer occupations will have to provide detailed information about: Continue reading →
In a recent decision the Administrative Appeals Office affirmed the revocation of an H-1B petition where the geographical location of employment had changed triggering a requirement for a new Labor Condition Application. In Matter of Simeo Solutions, LLC, 26 I&N Dec. 542 (AAO 2015), the AAO determined that a change in the beneficiary’s location of employment is a material change to the terms and conditions of employment as originally listed in the H-1B petition. Because such change is material, the petitioning employer was required to file an amended H-1B petition corresponding to a new LCA that reflects the change. The AAO noted that Section 212(n) of the Immigration and Nationality Act ties the prevailing wage to the “area of employment.” Therefore, the AAO reasoned, “a change in the beneficiary’s place of employment to a geographical area not covered in the original LCA would be material” for both the LCA and the H-1B petition, since such change may affect eligibility for H-1B petition.
In this case, the employer filed H-1B petition changing the beneficiary’s status from F-1 student to H-1B employee. In the Labor Condition Application and the H-1B petition, the employer identified an
The new H-1B fiscal year begins on October 1, 2015, when U.S. employers can add to their workforce up to 65,000 foreign nationals, plus additional 20,000 foreign nationals with a U.S. master’s or higher degree. In addition, any unused H-1B1 numbers from Chile and Singapore will be added to the regular H-1B visa pool. As the USCIS regulations permit the filing of H-1B petition no more than 180 days before the start date, and since the earliest state date for new H-1B employees would be October 1, 2015, the filing season begins today. Most petitioners had everything ready for mailing on March 31, 2015 (yesterday) for USCIS receipt on April 1, 2015.
Based on prior experience, USCIS expects to receive more petitions than the Congressionally mandated numerical limitations. The agency stated that it would monitor the number of petitions and will announce to the public when the cap has been met.