H-3
H-1B
1. Terminating employment of H-1B workers
2. Crackdown on H-1B Visa Fraud
3. Filing Cap-Exempt H-1B Petitions
4. USCIS issues H-1B filing instructions
5. Suspension of H-1B Premium Processing Could Hurt Businesses and Workers
6. Nurse Awarded Back Wages for Time He Didn’t Work
7. US Labor Department Vigorously Combats Visa Fraud
Consequences of failing to maintain non-immigrant status
By Reuben S. Seguritan
February 24, 2016
For aliens who entered the U.S. on a non-immigrant visa, it is important for them to maintain their status and to engage only in activities consistent with the status. Aliens who fail to maintain status become deport-able. They can neither change to said non-immigrant status nor apply for adjustment of status to permanent residence.
A foreign national who wishes to apply for admission into the U.S. generally applies for a visa at a U.S. consulate overseas. There are several types of visa classifications depending upon their specific purpose. Aliens who wish to come to the U.S. for pleasure are issued a B-2 visa. They are generally allowed three (3) to six (6) months to stay with a possibility to extend their status for another six (6) months.
Once a foreign national is legally admitted into the U.S., it is the date on the I-94 that governs his legal immigration status and the duration of his authorized stay in the U.S. The I-94 card is no longer issued. The foreign national can access the most recent I-94 admission record through the I-94 website. If the alien overstays or remains in the U.S. beyond the date on the I-94, the person becomes out of status.
If they overstay for six (6) months or more, they are subject to the three-year bar. If they overstay one year or more, the bar extends to ten years. The three or ten year bar means that if they leave they cannot reenter the U.S. until after three or ten years of stay abroad.
If a non-immigrant decides to pursue a different purpose or engage in another activity in the U.S., he has to apply for a change of status. An example is a person who entered as a student with an F-1 visa gets a job offer after finishing his/her studies in the U.S. Given the change of purpose of the stay in the U.S. from studying to working, the prospective employer may petition for a change of status on his behalf from F-1 to H-1B.
Likewise, a person who originally came as a tourist with a B-2 visa to visit family and friends may later on want to pursue studies in the U.S. Instead of going back to his country to apply for a new F-1 visa, the person can opt to apply for a change of status to F-1 with the U.S. Citizenship and Immigration Services (USCIS).
An alien on a B-2 visa who files Form I-539 to change status to student, may not start classes prior to its approval. An F-1 student fails to maintain his status if he fails to maintain a full course of study or if he transfers schools without permission.
An F-1 student who decides to work in the U.S. may not begin working before the Form I-129 petition filed by the employer is approved. Also temporary workers fail to maintain status if they change jobs without authorization. Those who work without authorization also fail to maintain their status.
The alien is authorized to engage in activities consistent with the status he is seeking only through the formal USCIS approval of the application to change status. If the alien took on activities not allowed under his current status, the application will most likely be denied. It is therefore important that the non-immigrant not violate the conditions of his non-immigrant visa/status.
Dont Overstay Or Your Visa Will Be Cancelled
November 20, 1996
E-1 or E-2 visa for foreign employees
October 26, 2016
A person can obtain an E-1 or an E-2 visa without necessarily being a treaty investor or a treaty trader. He can obtain an E-1 or E2 employee visa instead. A noncitizen employee of a treaty trader may obtain an E-1 visa and a noncitizen employee of a treaty investor may obtain an E-2 visa, if said employee is coming to the US to perform duties that are executive or supervisory in character, or, if he has special qualifications that are essential to the efficient operation of the enterprise.
There are a few things to be considered before applying for said visa. First and foremost is that as an employee of a treaty trader or treaty investor, you must have the same nationality as your employer. Since this is also a treaty-based visa, it is important that your employer comes from a country that has a standing treaty or bilateral relations with the United States to be able to engage in economic and commercial relations. It is important that you determine what the nationality of your employer’s business is. A business that is at least 50% owned by treaty nationals is eligible to become E-1 or E-2 visa recipient and the employees are, too.
The Philippines is one of the many countries that have commercial and navigational relations with the US. In fact, the Philippines has one of the longest treaty relations that started back in Sept. 6, 1955.
It is important also to consider what your role is to your company. In order for one to be eligible for an E-1 or E-2 employee visa, one should be an essential, managerial or executive employee of the company.
To be considered as an essential employee, you must be a specialist and not merely an ordinary skilled worker. You do not need to have an executive or supervisory function if your E-1 or E-2 employee visa application is based on being an essential employee. One must bear in mind that the United States Citizenship and Immigration Services (USCIS) looks into how your skills actually contribute to the successful operations of the company. They look into your expertise in the area or your length of training or experience as well as your salary. They also consider the availability of American workers in your field of expertise to consider your essentiality in the business. In one case, E-2 employee visa applicants who were nationals of Great Britain and employed by IAD Modern Design, Ltd. which at that time, had a contract with General Motors (GM), were considered essential to the company since it was proven that there was not enough American automotive design engineers who can do what they do best— redesign GM line of cars into smaller, Europe-style vehicles.
Your duty or position may also have an executive or supervisory character and USCIS looks not just into the title of the position vis-à-vis the business’ organizational structure but it also looks into your degree of control and responsibility in the operations of the company, the number and skills of the employees you will supervise, your salary level as well as your qualifying experience. Your executive and supervisory function must be your principal and not merely an incidental function.
Getting an E-1 or an E-2 employee visa can entitle one to work and live in the US and bring their family here as well. The good thing is that the spouse or children of the employee need not have the same nationality as the treaty trader or treaty investor employing the principal applicant. The E-1 or E-2 employee visa is issued for up to five (5) years and it can be renewed indefinitely in five-year increments.
While holding said visa, the E-1 or E-2 employee can obtain public education access for their children and access to universities without the need to apply for a student visa; obtain a social security number and of course, open bank accounts and get a driver’s license.
Terminating employment of H-1B workers
By Reuben S. Seguritan
July 06, 2016
Through the years, the H-1B visa program has become a way for American companies to fill their need for highly skilled workers. Through this program, US companies temporarily employ foreign nationals to work in specialty occupations or those requiring a bachelor’s degree or higher.
What happens however if after bringing in an employee into the company, the employer discovers that he is not a good fit or that he/she is not what the company needs? After all the tedious paperwork, does it have any recourse?
Any employer planning to terminate an employee on an H-1B visa status must follow not only the employment contract and applicable state and federal laws but also must adhere to regulations regarding H-1B employees. They must undertake a bona fide termination of the employment relationship, otherwise they could end up paying a considerable amount of money in back wages and other penalties.
The bona fide termination of employment involves a three-step process: (1) notifying an employee that his/her employment has been terminated; (2) notifying USCIS of the termination so that the petition could be revoked; (3) providing the worker with the reasonable cost of return transportation to his or her home country.
In one case involving a Filipino H-1B worker, the US Department of Labor (DOL) said that the employer failed to terminate its employment relationship on a certain date because it continued to market the non-immigrant to its clients. In the said case, the employer never sent an official termination notice to the worker. While it claimed to have written a letter terminating his employment, said letter was not offered in evidence. Moreover, even after the date that the employer claimed to have expressly told the worker that the employment was terminated, the former still continued to arrange for job interviews. Because of this, the first requirement was not fulfilled.
Next, the employer must notify USCIS that the employment relationship has ended. In the said case, it was stated that the applicable date for determining when the employer provided notice to USCIS was not the date the USCIS notified the employer that it had revoked the H-1B petition but the date the employer notified USCIS of its desire to revoke the petition.
Lastly, the employer must pay for the H-1B worker’s return trip home. An offer of return transportation is sufficient to fulfill this process.
It is important for employers to realize that failure to follow these steps could mean that they do not end their obligations of paying wages to their H-1B worker. Under the H-1B regulations, the employer must continue to pay wages unless the employer can prove by a preponderance of evidence that a bona fide termination was undertaken.
If the DOL determines that the employer committed a wage violation, it may also order the employer to pay back wages for the entire term of the LCA supporting the H-1B petition, calculated at the higher of the actual or prevailing wage. The H-1B employee may likewise be entitled to pre- and post-judgment interest on all back wages due.
In the same case, the DOL ordered the employer to pay back wages from February 15, 2010 to October 27, 2010 even if the employer notified the USCIS of the termination of employment in June 2010 and offered a plane ticket home on May 21, 2010. It was only on October 27, 2010 when the employer unequivocally put on notice that he was no longer an employee.
Proposed H-2C visa to benefit nurses and less skilled workers
By Reuben S. Seguritan
May 11, 2016
A bill to create a new visa program for temporary foreign workers has been introduced in the Senate by Senator Jeff Flake. Known as the Willing Workers and Willing Employees Act of 2016, the bill would create a 10-year guest worker pilot program.
The new visa would be called H-2C and it will allow employers to hire foreign workers with less than a bachelor’s degree to perform nonagricultural work in the US.
At present, there are several nonimmigrant visas available to temporary workers such as the H-1B visa for professionals and other highly skilled workers, the H-2A visa for temporary or seasonal agricultural workers and the H-2B visa for temporary or seasonal nonagricultural workers. But they do not address the need for year-round workers with less than a bachelor’s degree.
Foreign nurses and other health care workers will be eligible to apply for the H-2C visa. Registered nurses are generally not eligible to file for H-1B visa because nursing is not considered a specialty occupation under the H-1B program. A bachelor’s degree is not required to become a registered nurse.
The H-2C visa would be available only in counties or metropolitan statistical areas where the unemployment rate is 4.9 percent or less.
Employers will be registered with the Department of Homeland Security and they will have to attest that they had actively recruited workers but were unable to find a qualified US worker and that they have no labor dispute or layoffs.
There will be a flexible cap of 65,000 in the first year and 45,000 to 85,000 in the subsequent years depending on the economic demand. At least a quarter of the number of registered positions initially allocated for each 6 month-period shall be reserved for small business employers.
The H-2C visa would be granted initially for up to three years but could be renewed within the ten-year pilot period. The employees could be employed at any worksite and the employers could employ them at any worksite provided such location was advertised.
The law will require the Director of the Bureau of Census and other government agencies to conduct a study on the impacts of the H-2C program on home ownership rates, housing prices, access to quality health care, criminal justice system and employment and wage rates. Within three years from the enactment of the law, they will report to Congress on the findings of their study.
Senator Jeff Flake said that “this kind of flexible, market-based visa program designed to better meet economic demand is exactly the approach we need to bring US immigration policy into the 21st century”.
Several groups have applauded the introduction of this bill. The American Health Care Association said that it will help ease the nursing shortage by “making it easier for foreign nurses and other health care workers to get jobs at skilled nursing centers.”
H-1B processing after cap is reached
By Reuben S. Seguritan
April 20, 2016
The US Citizenship and Immigration Services (USCIS) recently announced that the H-1B cap for fiscal year 2017 has been reached. Over 236,000 petitions were received during the filing period that ended on April 7.
It conducted a computer-generated random process or lottery on April 9 to select the petitions that met the 65,000 cap for the general category and 20,000 for the advanced degree exemptions.
The lottery for the advanced degree came first and those not selected became part of the random process for the 65,000 limit. All rejected petitions will be returned along with their filing fees.
The USCIS will continue to accept and process petitions that are filed to extend an H-1B status, to change the terms of employment of an existing foreign worker with the same US employer, to transfer an H-1B worker to another US employer and to allow current H-1B workers to work concurrently in a second H-1B position.
It will also accept cap exempt H-1B petitions such as those filed for alien workers who will work at an institution of higher education or a related or affiliated nonprofit entity, nonprofit research organization, or a governmental research organization. Third party petitioners that are not qualifying entities may claim cap exemption if the beneficiary will work at a qualifying institution.
J-1 physicians who have obtained a Conrad 30 waiver are also cap exempt.
Meanwhile, the American Immigration Lawyers Association (AILA) has expressed concern over the huge disparity between the demand for alien skilled workers and the mandated cap that Congress has provided. AILA President Victor Pradis Nieblas said that “artificial limits established more than a generation ago are again hobbling the economic potential of this great nation.”
Nieblas further said “Why do we continue to artificially limit this program? In a reasonable system, market demand should factor into how many business visas are granted, and indeed, demand for H-1B visas slowed when the economy took a downturn. But each year that we cap these visas when demand outweighs supply, all we’re doing is creating obstacles to economic growth. We’re losing out on shared prosperity for no good reason.
“The United States is one of the most important economies in the world, but its full potential is going unrealized. We live in a wireless world, but our visa system is a relic from the days of dial-up modem. It’s long past time for Congress to lead on this issue and reform the H-1B program in a way that addresses the needs of American businesses, US workers and our economy. Congress must bring our immigration system out of the last century and into this one.”
The H-1B petition is used by most US companies to hire skilled alien workers to fill up skill gaps in the local labor supply.