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As a result of the suspension of H-1B premium processing and longer processing times, many employers are concerned about having to put H-1B employees on unpaid leave if U.S. Citizenship and Immigration Services (USCIS) does not adjudicate their extension petitions within 240 days.
The 240-day rule says that H-1B employees may continue working for up to 240 days while their petition to extend their status is pending with USCIS. If their petition has not been approved or denied after 240 days, employees must stop working or risk violating their status, and employers risk violating I-9 employment eligibility rules.
While the 240-day restriction applies to employees seeking to extend their H-1B status with the same employer, it does not affect employees who are awaiting a decision from USCIS on a petition to change employers or to amend their H-1B petition due to a new job location or other material change to the terms of employment that requires the employer to file for an amended petition. Therefore, these H-1B employees are not restricted to the 240 days and may continue to work until their petition is adjudicated.
BAL Analysis: When conducting internal I-9 audits and reviewing H-1B employees for employment eligibility, human resources staff should be aware that the 240-day rule applies to employees with pending H-1B petitions to extend their status with the same employer. However, employees who have filed an amended H-1B petition or a new H-1B petition based on a change of employer are not restricted by the rule, and the premium processing suspension should have a minimal effect on their continued employment if a decision on their petition remains pending beyond 240 days.
This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.
Copyright © 2018 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.
IMPACT – MEDIUM
What is the change? A bilateral agreement between Brazil and the United States on mutual recognition of social security benefits took effect Oct. 1.
What does the change mean? Under the US-Brazil Social Security Totalization Agreement, U.S. and Brazilian nationals sent to each other’s country on temporary assignment may have their social security contributions and benefits from their home country recognized, thereby eliminating double taxation on the same earnings.
Background: The agreement was signed June 30, 2015 but only ratified by both countries in August 2018 with a confirmed implementation date of Oct. 1. Under the agreement, employees of a U.S. entity who are temporarily assigned to Brazil for up to five years would continue to be covered by the U.S. social security system. Assignees working for a foreign affiliate of a U.S. entity may also retain U.S. social security coverage if the U.S. entity agrees to treat these individuals as their employees for social security purposes. The agreement also provides special exceptions for U.S. and Brazilian employees assigned to a third country temporarily.
Analysis & Comments: The agreement is expected to facilitate U.S.-Brazilian professional mobility, business travel and investment. Employers should work with their tax and immigration advisors to determine the best options in individual cases under the new rules.
Source: Deloitte LLP. Deloitte LLP is a limited liability partnership registered in England and Wales with registered number OC303675 and its registered office at 1 New Street Square, London EC4A 3HQ, United Kingdom.
Effective Wednesday, Canada will recognize the legal adult use of marijuana and will allow for limited personal possession and purchase of marijuana without criminal penalties. In the United States, 13 states have also decriminalized some forms of marijuana possession, including some that border Canada like Maine and Washington.
However, marijuana remains illegal under U.S. federal law. The federal Controlled Substances Act classifies marijuana as a Schedule I drug with high potential for abuse and no accepted medical use.
Under immigration law, violation of a controlled substance law—either domestic or foreign—may result in a finding of inadmissibility, which would impact a foreign national’s ability to obtain a visa, apply for a green card or convert from one immigration status to another, and subject him or her to deportation. In the worst-case scenario, someone who has been convicted of a drug offense or who admits to a violation of a drug law may be deemed permanently inadmissible. Moreover, evidence of cannabis use, even where legal, can lead to a finding of ineligibility on medical grounds as drug abuse. While medical grounds are not permanent, they can lead to ineligibility findings until the person is determined to be in full remission.
Therefore, it is important to be aware that bringing marijuana purchased legally from Canada into the U.S. can have potentially serious immigration consequences, even if it is being brought into a state where possession is decriminalized.
BAL Analysis: Foreign nationals traveling from Canada to the U.S. should be aware that marijuana remains an illegal drug under U.S. federal law and that serious immigration consequences can result from violating or admitting to having violated a controlled substance law or having used a controlled substance. Travelers and employers may contact their BAL professional for additional advice in individual cases.
U.S. Citizenship and Immigration Services has announced that in November it will follow the State Department’s Dates for Filing chart, as published in the November Visa Bulletin, to determine whether applicants are eligible to file for adjustment of status.
The Dates for Filing chart for November is identical to the Dates for Filing chart for October, which USCIS is using to determine eligibility for the current month’s adjustment of status applications. As a result, eligible applicants in October will continue to be eligible to file their applications in November.
Dates for Filing for Employment-Based Preference Cases:
Family-based immigrants will also use the Dates for Filing chart applicable to family-sponsored immigrants, which was also published in the November Visa Bulletin.
BAL Analysis: USCIS’ continued use of the Dates for Filing chart in November is positive news for many employment-based immigrants, as that chart contains more progressive cutoff dates than the November Final Action Dates chart, especially in the EB-1 categories. Employment-based adjustment-of-status applicants who are eligible to file this month will continue to be eligible to file in November.
Priority-date cutoffs for nearly all employment-based categories based on Final Action Dates will show no movement in November, according to the State Department’s November 2018 Visa Bulletin released Wednesday. Cutoff dates for EB-1 categories will remain in place. Only China EB-2 and the Philippines EB-3 categories will advance slightly.
Key movements:
EB-1
EB-2
EB-3
Additional notes: The EB-4 category for religious workers (other than ministers) and the EB-5 Regional Center (I5 and R5) Immigrant Investor program were renewed by Congress under a temporary spending measure that funds Department of Homeland Security operations until Dec. 7, 2018.
Application Final Action Dates for Employment-Based Preference Cases:
The State Department also released its Dates for Filing chart for November. Applicants seeking to file for adjustment of status are reminded that the chart does not take effect unless U.S. Citizenship and Immigration Services (USCIS) confirms that it does via a web posting in the coming days. BAL will update clients once the State Department confirms whether the chart can be used in November.
BAL Analysis: Executives in the EB-1 category are reminded that it is unlikely that any of the EB-1 countries will see forward movement before December. According to Charlie Oppenheim, chief of the Visa Control and Reporting Division at the State Department, it is “almost guaranteed” that a cutoff date will be imposed for both China EB-1 and India EB-1 throughout the fiscal year, i.e., through September 2019, but he also believes that there will be some forward movement in all EB-1 categories after the beginning of 2019. Applicants should continue to watch China EB-2 and EB-3 for relative priority-date cutoffs. Although in November there will be no movement in India EB-2 and EB-3, applicants should monitor movement in these categories in coming months as EB-3 may surpass EB-2 during the fiscal year.
Employees often wonder whether they absolutely must obtain the required sealed medical exam by a certified U.S. Citizenship and Immigration Services doctor prior to filing their adjustment-of-status application. While it is not absolutely required, we strongly recommend “yes” to getting it done before they file their application.
Many are aware that USCIS guidelines allow for the submission of the medical exam after the filing of the adjustment of status. So there is no compelling legal reason that it must be included – except to stave off an eventual request for one, either in a request for evidence (RFE) or at the green card interview. However, there are a number of very practical reasons for ensuring that the medical exam is completed prior to the adjustment-of-status filing.
A primary reason for doing so is to have more lead time to strategize. Certain medical issues can have immigration impacts. A variety of medical issues could potentially trigger USCIS to question, or outright deny, the green card application. One of them could be a previously undiagnosed disease; another could be a missing vaccination. Why be taken by surprise?
Fortunately, if issues are discovered prior to the submission of the adjustment-of-status application, it is possible to mitigate them by delaying the filing. Individuals who object to vaccinations on religious or moral grounds may apply for a waiver of the vaccination requirement for themselves or their children. Similarly, if tuberculosis is diagnosed, there is time to submit a waiver request and receive required treatment.
While the medical form needs to be provided in a sealed envelope, it is also critical to request a copy of the medical form to ensure that there are no surprises. Even for an individual in perfect health, a box left unchecked in haste by the physician could result in another medical examination needing to be done prior to case approval. Similarly, some physicians may not be using the currently accepted version of the form, which can also lead to USCIS rejection.
Applicants sometimes have insufficient time to obtain a medical examination prior to filing the application. Every month there are certain applications that need to be filed before the end of that month. The priority dates change on a monthly basis, and since the exam can only be done by a doctor approved by USCIS, and vaccination histories must be collected prior to the appointment, there may not be enough time to complete the exam process. If follow-up tests are needed, results could be delayed further. Accordingly, for truly urgent situations, when someone is quite sure they are fully caught up on all medical issues, it might be possible to file without a medical exam.
As noted above, BAL recommends that employees obtain the medical exam in time to file it with the adjustment-of-status application. However, for urgent situations BAL can review submitting without on a case-by-case basis.
The information contained here is meant to be informational, and while BAL has made every effort to ensure the accuracy of the information, it is not promised or guaranteed to be complete. Readers of this information should not act upon any information contained on this alert/blog without seeking professional counsel. This alert does not constitute legal advice or create an attorney-client relationship. Any reference to prior results, does not imply or guarantee similar future outcomes.
The Department of Homeland Security (DHS) has published a proposed rule in the Federal Register that redefines the “public charge” ground of inadmissibility under the Immigration and Nationality Act for immigrants deemed likely to become dependent on government assistance. The rule closely mirrors a draft rule that the agency posted to its website Sept. 22.
Key points:
Background: Under current guidelines, adjudicators only consider cash benefits and generally make a finding of inadmissibility on “public charge” grounds if the applicant relies on cash benefits for more than 50 percent of their income. Under the proposed rule, adjudicators may consider both cash and non-cash benefits, such as Medicaid (except for emergency Medicaid and certain education-related disability services); Medicare Part D low-income prescription drug subsidy, food stamps (Supplemental Nutrition Assistance Program, or SNAP); Section 8 housing vouchers, rental assistance and subsidized public housing; and benefits for institutionalized long-term care.
BAL has produced an FAQ on the proposed regulation, available here.
BAL Analysis: Employers and individuals are encouraged to participate in the public comment period before it closes on Dec. 10, as it is an opportunity to help shape policy and it is not uncommon for the government to revise its proposal in response to feedback from stakeholders. BAL projects that the earliest a final rule could take effect is March 2019. This timeline does not take into account the likelihood of litigation challenging these controversial provisions, which could delay implementation of a final rule. The proposal to require applicants for change and extension of nonimmigrant status to address public charge issues could result in further delays in processing these applications.
The Labor Department has posted processing times current as of Sept. 30 for permanent labor certification (PERM) applications and prevailing wage determination (PWD) requests.
PERM Processing: Applications filed in August and earlier are now being adjudicated, according to the department. Audit reviews are being conducted on applications filed in March and earlier, and appeals filed in August and earlier are being reviewed for reconsideration.
Average PERM processing times in September:
PWD Processing: The National Prevailing Wage Center is currently processing requests filed in June and earlier for H-1B and PERM cases. Redeterminations are being considered on appeals filed in September and earlier for H-1B cases and appeals filed in August and earlier for PERM cases. Center director reviews are being conducted on appeals filed in August and earlier for PERM cases. The department reported that it had no redeterminations or center director reviews pending for H-1B cases.
Average times for issuance of prevailing wage determinations in August:
The Labor Department reports PERM and PWD processing time frames on its iCERT page.
BAL Analysis: BAL’s internal case tracking is consistent with the Labor Department’s published processing times. BAL is seeing approvals for PERM applications filed in August and is awaiting PWDs for requests filed in June and earlier.
A federal judge in California has issued a nationwide temporary injunction in the case Ramos, et al, v. Nielsen, which blocks the Trump administration from terminating Temporary Protected Status, or TPS, for four countries—Haiti, Sudan, Nicaragua and El Salvador.
Late last year and early this year, the administration terminated TPS designation for several countries. The four countries at issue represent more than 300,000 TPS holders who would be subject to deportation when the designation expires. The lawsuit was brought by TPS beneficiaries and their U.S. citizen children who argue that the administration violated the Administrative Procedures Act and the Equal Protection Clause in terminating the programs.
The court said that the plaintiffs would suffer irreparable harm if it did not issue an injunction. The plaintiffs, many of whom have been in the U.S. legally for two decades and have U.S. citizen children, would have to decide between leaving the only country their children have known and separating their families. In addition, the government not only would not face harm from an injunction, but state and local economies would suffer if 300,000 TPS beneficiaries are uprooted and deported. “The balance of hardship tips decidedly in plaintiffs’ favor,” wrote U.S. District Court Judge Edward M. Chen in a 43-page decision.
The judge also found that the plaintiffs were likely to succeed on the merits. On the Administrative Procedures Act, he said that the “wealth of record evidence” showed that the Department of Homeland Security changed its policy regarding TPS designations, such as disregarding current conditions if they were not the original basis of the TPS designation, and did not provide a rationale for such a policy change. On the Equal Protection Clause argument, he said the plaintiffs raise serious questions as to whether a discriminatory purpose was a motivating factor in the decisions to terminate the TPS designations, including evidence that DHS acted under pressure from Trump and statements by Trump indicating that he harbors an animus against non-white non-European aliens.
Background: TPS designation allows DHS to provide temporary legal status and eligibility to apply for an employment authorization document to individuals who are unable to return to their home countries in extraordinary events such as armed conflict or natural disasters.
Haiti was originally designated for TPS in 2010 following a magnitude 7.0 earthquake. The designation was extended four times by the Obama administration, and the Trump administration extended it once for a six-month period before announcing in January 2018 that it would be terminated as of July 22, 2019. Sudan was designated for TPS status in 1997 due to ongoing armed conflict and was extended 15 times by the Clinton, Bush and Obama administrations. DHS announced it would terminate the designation as of Nov. 2, 2018. Nicaragua was designed in 1999 due to Hurricane Mitch and was extended 13 times by three administrations. DHS announced in December 2017 that it would terminate the designation on January 9, 2019. El Salvador was designated in 2001 based on a series of earthquakes and was extended 11 times by the Bush and Obama administrations. DHS announced in January 2018 that its designation would be terminated as of Sept. 9, 2019.
BAL Analysis: The injunction does not change anything immediately, as orders to terminate the programs were not to take effect until different dates in 2019, or November 2, 2018 in the case of Sudan. Given the imminent termination date of the Sudan TPS program, individuals whose Sudan TPS is set to expire next month may be eligible to renew their status and employment authorization beyond the expiration date in coming weeks. DHS has 15 days to implement procedures to ensure that TPS for all four countries remains in effect during the pendency of the lawsuit. The administration will likely appeal this decision.
Registration for the fiscal year 2020 Diversity Immigrant Visa Program begins Wednesday, Oct. 3.
The program provides 50,000 immigrant visas (green cards) to people from countries with historically low levels of immigration to the United States. Applicants must meet certain eligibility requirements and are selected through a computerized lottery.
Background: In order to qualify, registrants must have been born in an eligible country and meet educational or work requirements. Nationals of the following countries will be ineligible to apply for DV-2020: Bangladesh, Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, El Salvador, Haiti, India, Jamaica, Mexico, Nigeria, Pakistan, Peru, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam. Persons born in Hong Kong SAR, Macau SAR, and Taiwan are eligible. Registrants must also have a high school education (or the equivalent) or have worked in two of the past five years in a qualifying occupation.
Each individual may only submit one entry; those who submit more than one will be disqualified.
BAL Analysis: Those interested in entering the lottery should review the State Department’s Diversity Visa Instructions page and are reminded not to wait until the last week of the application period to submit their entry forms. Registration is free and registrants should be aware of fraud warnings and scams that target those attempting to register for the program.