Tag Archive for: 60 day grace period

Cyrus Mehta

Pathways for Terminated H-1B Workers Who Want to Become Entrepreneurs

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By Cyrus D. Mehta & Jessica Paszko*

The list of options for an H-1B beneficiary who has been laid off is often narrow. At the top of the list sits the most obvious option: find another employer who will sponsor you for an H-1B. Although, in the current job market, which is growing more competitive due to the influx of laid off employees, there simply may not be enough open positions to fill. But laid off H-1B beneficiaries who can’t find another employer to sponsor them and who have been dreaming of setting up their own startups may not need to pack their bags and book their flights home just yet as there might be another, more creative option to consider: starting your own company and extending H-1B status through that company.  Whichever option laid off beneficiaries pursue; they have 60 days to get their affairs in order under 8 C.F.R. § 214.1(l)(2) which allows H-1B beneficiaries to remain in the U.S. for up to 60 days after their H-1B employment ceases.

The last time we explored the topic of H-1B entrepreneurs, the control test in the Memo “Determining Employer-Employee Relationship for Adjudications of H-1B Petitions, Including Third-Party Site Placements” by Donald Neufeld posed an obstacle. The Neufeld Memo attempted to clarify what constitutes a valid employer-employee relationship under 8 C.F.R. § 214.2(h)(4)(ii) and established a policy wherein H-1B petitioners had to establish that they had the right to control over when, where and how the beneficiary performed the job. Neufeld urged USCIS officers to consider eleven factors in determining whether a petitioner had sufficiently established its “right to control”. Despite the Neufeld Memo, we still entertained, in our blog, the idea of whether a startup owner can be able to get  sponsored on an H-1B through a startup, while simultaneously addressing the potential obstacles that one might experience in attempting such a feat.

Now, ten years after that blog was published, changes have occurred in immigration policy that contemplate scenarios in which entrepreneurs can remain in the U.S. on an H-1B through their startup or be paroled into the U.S. to set up their start-ups. For starters, on June 17, 2020, the Neufeld Memo was rescinded, effectively ending the “right to control” era. Instead, in assessing whether an employee and a beneficiary have an employer-employee relationship, USCIS officers were instructed to consider whether the petitioner has established that it meets at least one of the “hire, pay, fire, supervise, or otherwise control the work of” factors with respect to the beneficiary. See 8 C.F.R. § 214.2(h)(4)(ii). Most recently, on March 10, 2023, USCIS issued comprehensive guidance on parole for international entrepreneurs.

USCIS has also provided FAQs where it addresses parole pathways for entrepreneurs under the International Entrepreneur Rule, a topic that is not the focus of this blog, but which also touches on the key requirements that one must fulfill to qualify for classification as an H-1B specialty occupation worker. The first requirement is establishing an employer-employee relationship with the petitioning U.S. employer. Here, the sole or majority owner of the petitioning company may be able to establish a valid employer-employee relationship if the facts show that the petitioning entity meets at least one of the “hire, pay, fire, supervise, or otherwise control the work of” factors.  Old decisions recognize the separate existence of the corporate entity as separate and distinct legal entity from its owners and stockholders. See Matter of M, 8 I&N Dec. 24, 50 (BIA 1958, AG 1958); Matter of Aphrodite Investments Limited, 17 I&N Dec. 530 (Comm.1980); and Matter of Tessel, 17 I&N Dec. 631 (Act. Assoc. Comm. 1980).  As such, a corporation, even if it is owned and operated by a single person, may hire that person, and the parties will be in an employer-employee relationship. This point needs to be brought out when advancing an H-1B for an entrepreneur when Neufeld has been rescinded. Still, we acknowledge that the H-1B petition may have more success when there is another investor or shareholder, and the beneficiary is not the sole owner of the entity. That person may be able to exercise control over the H-1B beneficiary, even if they have a minority interest. It may not be necessary to show that the other individual or entity has the power to discipline the beneficiary, but only that this person can exercise negative control over the beneficiary’s decisions. There is nothing preventing the other individual from being a family member, and the shareholder or director also need not be residing in the U.S.

The second requirement is establishing that the job qualifies as a specialty occupation under one of the four criteria under 8 C.F.R. § 214.2(h)(4)(iii)(A). The third requirement is establishing that the job is in a specialty occupation related to the beneficiary’s field of study which may done by submitting a detailed description of the specific duties of the position, written opinions from experts in the field, resources describing the degree fields normally associated with the occupation, or evidence that similar companies in the industry require similar degrees for similar positions. USCIS could likely challenge whether a position in a startup, where the beneficiary may be wearing many hats, can support a specialized position. The H-1B visa law requires the petitioner to demonstrate that a bachelor’s degree in a specialized field is the minimum qualification for entry into that occupation. Lastly, the fourth requirement is that an H-1B visa number be available at the time of filing the petition, unless the petition is exempt from numerical limits, though the topic of this blog assumes that one has already been counted against the cap. Notably, this new guidance does not seem to elevate control over all the other components in the employer-employee relationship under 8 C.F.R. § 214.2(h).

There are other challenges for an H-1B entrepreneur that may be beyond the USCIS’s control. Every H-1B petition must be accompanied by a certified Labor Condition Application (LCA) from the DOL. Under an LCA, the employer attests that it must pay the beneficiary the higher of the prevailing or actual wage, and must also do so on a regular prorated basis. In a startup, there may be no revenue stream to pay the entrepreneur initially. Thus, unless the startup is sufficiently capitalized through venture capital or other forms of financing that can ensure a steady stream of income to the H-1B beneficiary at the required wage, the petitioning entity may be in violation of the DOL rules if it cannot guarantee a regular prevailing wage.

Still, these challenges are not insurmountable. H-1B beneficiaries who wish to obtain H-1B status through their startups face a less hostile environment as they do not have to deal with the control test under the Neufeld memo. Before, our answer to the question of “can the startup owner be able to sponsor themselves on an H-1B through the startup?” was a shaky “maybe”. Now, however, while still not implying a definitive “yes”, there is at least more reason to believe that an entrepreneur should be able to successfully sponsor him or herself through their own startup, especially in light of the June 17, 2020 guidance and the latest FAQs. If the beneficiary has an approved I-140, then he or she can also get three year H-1B extensions if eligible. Recall though that those who qualify for three year extensions only do so because they are nationals of countries with per-country limitations. Thus, when their priority dates become current, they will no longer be eligible for three year H-1B extensions. At that point, they could file an EB-2 National Interest Waiver (NIW), for instance, in order to be to apply for a green card through a viable I-140 petition and in doing so, will be able to recapture their old priority date. As a result of starting their own companies, these entrepreneurs can now capitalize on their startups and use them as a basis for establishing their eligibility for the NIW. The NIW may also be a viable option for those in the STEM field as the USCIS Policy Manual was updated last year to clarify how the NIW can be used by STEM entrepreneurs.

On the other hand, H-1B beneficiaries who are terminated and have pending I-485 applications can attempt to port to self-employment. INA § 204(j) allows foreign workers who are being petitioned for permanent residence by their employer to change jobs once their I-485 applications have been pending for 180 days or more. 8 C.F.R.§ 245.25(a)(2)(ii)(B) even allows a beneficiary to port to a new employer based on an unadjudicated I-140, filed concurrently with an I-485 application, so long as it is approvable at the time of filing. Therefore, H-1B beneficiaries who have a pending or approved I-140 and who have adjustment applications that have been pending for 180 days can, after being terminated by their H-1B/I-140 sponsor, start their company and port to that company, or even a sole proprietorship,  so long as their job duties are same or similar to the occupation that was the basis of the I-140 petition. They may ne able to rely on their pending I-485 application, and employment authorization document, rather than remain in H-1B status.

While there is no specific startup visa in the INA, USCIS should think of immigration in a strategic sense as a mechanism to create wealth and expand the economy. By encouraging H-1B entrepreneurs the USCIS should also think like an entrepreneur, use all its authority under the INA to allow entrepreneurs to remain and thrive in the U.S., and adjudicate H-1B petitions consistent with this objective. Notwithstanding a downturn in certain sectors of the economy, the talents and creative energies of H-1B workers who have been laid off can be unleashed so that they be part of the effort in turning around the economy in addition to landing on their feet.

*Jessica Paszko is an Associate at Cyrus D. Mehta &  Partners PLLC. She graduated with a J.D. degree from Brooklyn Law School in 2021.

 

 

 

Cyrus Mehta

Layoffs Will Hurt Nonimmigrant Workers the Most, Especially Indian Born,  but the Biden Administration Can Provide Relief

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By Cyrus D. Mehta and Kaitlyn Box*

In recent weeks, news of layoffs at the likes of Twitter, Meta, and Amazon have contributed to broader fears that the United States is entering a recession. In last week’s blog, we provided suggestions for how terminated workers can maintain their nonimmigrant status and potentially even pursue permanent residency. The layoffs at Twitter have also shown that it was mainly workers whose H-1B visas were tied to Twitter that have stayed on and abided by the unreasonable ultimatums of Elon Musk. This has given credence to the notion that H-1B workers are akin to indentured laborers especially those who are caught in the never ending green card backlogs. We follow up on the previous blog by providing some suggestions that the Biden administration can follow to allow nonimmigrant workers who have been laid off to remain in the U.S, and even if they are not terminated,  they should not be required to cling on to their job at all costs.

First, the Biden administration could extend the 60-day grace period to allow nonimmigrant workers additional time to find alternate employment after being impacted by a layoff. As discussed in prior blogs, 8 CFR § 214.1(l)(2) allows E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 or TN nonimmigrant workers a grace period of 60 days after a cessation of their employment. Workers who are able to find new employment within 60 days will be able to remain in the U.S. and maintain their nonimmigrant status, but this period may not allow sufficient time for job hunting, especially if layoffs and hiring freezes become more widespread. By extending the 60-day grace period, the Biden administration would allow terminated workers more time to find new employment in the U.S. The 60-day grace period is a relatively new concept, having been introduced in a final rule that went into effect on January 17, 2017. Before this rule was enacted, nonimmigrant workers did not benefit from any grace period, and had to immediately leave the U.S. if their employment was terminated to avoid being considered in violation of their nonimmigrant status. Because the 60-day grace period was itself created by a rule, the Biden administration could easily promulgate a new rule extending the grace period to 180 days, for example, or even longer. To avoid Administrative Procedure Act (APA) challenges, though, the administration would likely have to follow the strictures of the notice and comment rulemaking process rather than bypassing them under the good cause exception. Notice and comment rulemaking takes time, however, and the relief of an extended grace period might not arrive quickly enough for workers who have already lost their jobs or are laid off in the near future.

The next suggestion is to make clear when the 60 day grace period starts. Many workers are placed on severance or garden leave. The 60 day grace period should start at the end of the severance period. However, a June 2020 USCIS Policy Memo has muddied the waters somewhat. In this memo, the USCIS has indicated that “[t]he failure to work according to the terms and conditions of the petition approval may support, among other enforcement actions, revocation of the petition approval, a finding that the beneficiary failed to maintain status, or both.” Based on this policy, it would seem that the grace period starts when the H-1B worker is no longer in productive status even though they may be paid their full salary during the severance or nonproductive period. The USCIS should clarify that an H-1B worker continues to maintain status so long as the employer-employee relationship has not terminated.

The USCIS also gives officers discretion to determine whether nonproductive status constitutes a violation of the beneficiary’s nonimmigrant classification. The following extract from the USCIS Policy Memo is worth noting:

In assessing whether a beneficiary’s non-productive status constitutes a violation of the beneficiary’s H-1B nonimmigrant classification, the officer must assess the circumstances and time spent in non-productive status. While neither statutes nor regulations state the maximum allowable time of non-productive status, the officer may exercise his or her discretion to issue a NOID or a NOIR to give the petitioner an opportunity to respond, if the time period of nonproductive status is more than that required for a reasonable transition between assignments. As always, if the officer encounters a novel issue, the officer should elevate that issue to local service center management or Service Center Operations, as appropriate.

One should also note a 1999 advisory opinion concerning reductions in force.  USCIS indicated that a severance package that offered terminated H-1B and L-1 employees their normal compensation and benefits for a 60-day period did not preserve the beneficiaries’ nonimmigrant status. Specifically, Branch Chief Simmons wrote, “An H-1B nonimmigrant alien is admitted to the United States for the sole purpose of providing services to his or her United States employer. Once H-1B nonimmigrant alien’s services for the petitioning United States employer are terminated, the alien is no longer in a valid nonimmigrant status. However, an H-1B worker who has not been terminated, but is on leave, can distinguish his or her situation from one who has indeed been terminated.”

Instead of all this muddled guidance and mixed messaging, the USCIS should provide straightforward clarification regarding when H-1B status ends, and clearly indicate that H-1B workers who are still maintaining an employer-employee relationship after being given notice ought to be considered in status until the relationship ends.

Another step that the Biden administration can employ to aid laid off nonimmigrant workers is the expeditious issuance of employment authorization documents (EADs) that would allow nonimmigrants to continue working in the United States for a new employer. Under 8 CFR § 204.5(p), an EAD may be issued to individuals in E-3, H-1B, H-1B1, O-1 or L-1 nonimmigrant status if they can demonstrate compelling circumstances and are the beneficiaries of approved I-140 petitions, but their priority dates are not current. “Compelling circumstances” have never been precisely defined, but DHS suggested some examples of compelling circumstances in the preamble to the high skilled worker rule, which include serious illness and disabilities, employer dispute or retaliation, other substantial harm to the worker, and significant disruptions to the employer. DHS has suggested loss of funding for grants that may invalidate a cap-exempt H-1B status or a corporate restructure that render an L-1 visa status invalid are examples of scenarios that might constitute significant disruption to the employer. Historically, USCIS has rarely issued EADs under compelling circumstances. Given the precarious situation that nonimmigrant workers who are impacted by layoffs will find themselves in, the Biden administration could instruct USCIS to employ this authority to generously grant EADs to individuals who have lost their jobs. Nonimmigrant workers who are laid off will be forced to uproot their lives on very short notice if they cannot find new employment within 60 days. Many nonimmigrant workers have lived and been employed in the United States for many years. Some have U.S. citizen children and spouses who have also built careers in the United States. Such individuals will face serious hardship if they are forced to abandon their lives in the United States and return to the countries of which they are citizens, a devastating situation that should be interpreted to readily constitute compelling circumstances.

The Biden administration can also utilize a provision at 8 CFR § 214.1(c)(4), which affords USCIS the discretion to accept an untimely filing if “the delay was due to extraordinary circumstances beyond the control of the applicant or petitioner, and the Service finds the delay commensurate with the circumstances; [t]he alien has not otherwise violated his or her nonimmigrant status; [t]he alien remains a bona fide nonimmigrant; and [t]he alien is not the subject of deportation proceedings”. A nonimmigrant worker whose employer was unable to timely file a petition on his behalf due to a layoff could credibly assert that his uncertain employment situation constituted extraordinary circumstances. If the layoff was the result of a recession or general economic difficulties, it should be demonstrable that the resultant delay of filing the H-1B petition beyond the grace period was not the fault of either the petitioner or the beneficiary. By generously applying this discretionary authority, the USCIS can assist nonimmigrants whose ability to seek a timely extension of status is impacted by a termination.

Ideally, a legislative solution would relieve the immense immigrant visa backlog, which would prevent beneficiaries of I-140 petitions from remaining in a nonimmigrant visa status for years until they can file adjustment of status applications. Proposals for legislative solutions include the recapture of wasted visa numbers from previous years and the allocation of additional visas to backlogged categories. Although Wang v. Blinken, No. 20-5076 (D.C. Cir. 2021), a case we have discussed in a previous blog, previously struck the idea down, Congress could assert that INA § 203(d) requires the unitary counting of family members. Even the Administration could contradict Wang v. Blinken if it had chutzpah through a rule or policy memo under the Brand X doctrine (thus overruling the case everywhere except in the DC Circuit), but this is hard to imagine as it recently successfully contested the plaintiff’s contention of unitary counting in that case. Another legislative proposal is to eliminate the per country limits, but even if that passes, there will still be backlogs although not as terrible right now which could be over a 100 years for Indian born beneficiaries.  Of course, finding a legislative solution is easier said than done in a polarized Congress, which will get even more polarized in 2023 when the Republicans take control of the House and the Democrats take control of the Senate. The GOP is too obsessed about border security before making any deal on immigration reform. There is also an urgency to prioritize on a legislative solution for DACA recipients as it is expected that the Supreme Court will uphold the lower courts that have found that DACA is not authorized by the INA. Unless by some stroke of luck the lame duck Congress can cobble together a deal to bring relief to backlogged beneficiaries based on the many proposals on the table, the Biden administration should focus on administrative solutions to bring relief to terminated nonimmigrant workers, who stand to suffer the most in the face of layoffs and economic woes.

Existing Indian born H-1B workers in the employment based green card backlogs who get terminated are  far worse off than others. But for the backlogs they may have already had their green cards or become US citizens. Indian born beneficiaries whose labor certifications were filed after April 1, 2012 are still caught in the backlogs and have remained in H-1B status while their contemporaries born in other countries have become US citizens.  Making tweaks in existing policies such as extending the 60-day grace period, issuing EADs based on a more generous interpretation of compelling circumstances, and giving more  discretionary authority to accept untimely filings under 8 CFR § 214.1(c)(4)  can provide some small amelioration to terminated nonimmigrant workers, especially those who are caught in the never ending green card backlogs.

(This blog is for informational purposes and should not be viewed as a substitute for legal advice).

*Kaitlyn Box is a Senior Associate at Cyrus D. Mehta & Partners PLLC.

 

Cyrus Mehta

Guide to Terminated Noncitizen Workers: Preserving Nonimmigrant Status and Permanent Residency Options

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By Cyrus D. Mehta

The sudden layoffs of nonimmigrant workers in H-1B and other statuses at Twitter and other tech companies in the US create additional concerns as their visa status is tied to the employer. Those who have been sponsored for permanent residence face additional concerns. We provide a quick guide to employees who have been laid off and how they can still be able to take steps to remain in status, and take advantage of the priority date already established on their behalf if they have been sponsored for permanent residency.  Although this blog provides guidance to terminated nonimmigrant workers, our recent prior blogs,  here and here, guide employers on their obligations when nonimmigrant workers are terminated

60 Day Grace Period

 As discussed in our prior blog, 8 CFR §214.1(l)(2) allows E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1or TN nonimmigrant workers a grace period of 60 days upon a cessation of their employment. The 60-day grace period is indeed a salutary feature and was not around during prior disaster episodes. Up until January 17, 2017, whenever workers in nonimmigrant status got terminated, they were immediately considered to be in violation of status. There was also no grace period to depart the United States. Therefore, if a worker got terminated on a Friday, and did not depart on the same day, but only booked the flight home on Sunday, this individual would need to disclose on a future visa application, for all time, that s/he had violated status. Derivative family members, whose fortunes were attached to the principal’s, would also be rendered out of status upon the principal falling out status. Thus, the 60-day grace period not only gives the worker more time to leave the United States, but it also provides a window of opportunity to transition to another employer who can file an extension or change of status within the 60-day period. Similarly, the worker could also potentially change to some other status on their own, such as to F-1, after enrolling in a school. If the worker may need more time to leave the US beyond the 60 days, they can apply for a change to B-2 visitor status. Prior to January 17, 2017, nonimmigrant workers who fell out of status upon cessation of their employment, and sought a late extension or change of status had to invoke the USCIS’s favorable discretion pursuant to 8 CFR §214 .1(c)(4) and 8 CFR §248(b)(1)-(2) by demonstrating, among other things, extraordinary circumstances.

Thus, an H-1B worker who has been terminated may be able to seek another employer to file an extension of status on their behalf within the 60 day grace period. As this worker has already been counted under the H-1B cap, the employer will not need to register under the next H-1B lottery and can immediately transfer H-B status through the new employer.

The maximum time that a noncitizen can spend in H-1B status is six years. If the worker has spent less than six years in the US, they can seek to obtain the remainder of unused time in H-1B status for a maximum of six years. Any time not spent in the US during the prior H-1B status period can be recaptured based on trips made abroad. See 8 CFR 214.2(h)(13)(iii)(C).  If the individual is the beneficiary of an approved I-140 petition, and the final action date is not yet current under the State Department Visa Bulletin in the employment second (EB-2) or employment third preference (EB-3), the worker can obtain a three year H-1B extension even beyond the six years until the date has become current pursuant to § 104(c) of the American Competitiveness in the 21st Century Act. If the final action date is current under EB-2 or EB-3, the worker is entitled to a one year H-1B extension beyond six years under §106(a) of AC21. However, if an I-485 adjustment of status application has not been filed within one year, a worker may be precluded from talking advantage of the one year extension unless it can be shown that failure to file an immigrant visa or adjustment of status application was beyond the worker’s control, and this has been further explained in our prior blog.

Although a laid off L-1 worker will also be able to avail of the 60-day grace period, and is entitled to a maximum of seven years if in L-1A status or five years if in L-1B status (including recaptured time), filing an L extension through another employer would be challenging as the worker has to demonstrate that they have had one year of qualifying experience in an executive, managerial or specialized knowledge capacity for a parent, branch or subsidiary of the US entity in the past three years. If the employer can only file a change of status to H-1B, then unless the worker has previously been counted under a prior H-1B cap, they will have to wait to be registered in the next H-1B lotter in March 2023. Other options could include changing status to  O-1A if the terminated L-1  worker can qualify as a person of extraordinary ability.

 

Garden Leave and Nonproductive Status

What is less clear is when termination occurs with respect to an H-1B worker. An employer can terminate on November 1, 2022 and still pay the employee the full wage but keep this person in a nonproductive status for several weeks or months. Let’s assume in this example that the worker is terminated on November 1, 2022, but continues to be paid from November 1, 2022 till December 1, 2022 while in nonproductive status. This nonproductive period is known as “garden leave” where the terminated worker is still considered an employee but not required to engage in productive work for the employer. The employer utilizes “garden leave” to disincentivize the employee from immediately working for a competitor or as part of a severance agreement. Does the termination in this scenario occur on November 1, 2022 or on December 1, 2022, which is when the garden leave period ends and the worker ceases to receive a salary in accordance with the terms of the H-1B petition?

According to a June 2020 USCIS Policy Memo, the USCIS has indicated that “[t]he failure to work according to the terms and conditions of the petition approval may support, among other enforcement actions, revocation of the petition approval, a finding that the beneficiary failed to maintain status, or both.” Based on this policy, it would be safer to consider the termination as occurring on November 1, 2022 rather than December 1, 2022. Yet, the USCIS acknowledges that there may be situations when H-1B status is not violated if the worker is on leave under statutes such as the Family and Medical Leave Act or the Americans with Disabilities Act, even if the worker is not paid.

The USCIS also gives the officer discretion to determine whether nonproductive status constitutes a violation of the beneficiary’s nonimmigrant classification. The following extract from the USCIS Policy Memo is worth noting:

In assessing whether a beneficiary’s non-productive status constitutes a violation of the beneficiary’s H-1B nonimmigrant classification, the officer must assess the circumstances and time spent in non-productive status. While neither statutes nor regulations state the maximum allowable time of non-productive status, the officer may exercise his or her discretion to issue a NOID or a NOIR to give the petitioner an opportunity to respond, if the time period of nonproductive status is more than that required for a reasonable transition between assignments. As always, if the officer encounters a novel issue, the officer should elevate that issue to local service center management or Service Center Operations, as appropriate.

A terminated H-1B worker may need more time to find another job and thus extend the commencement of the grace period to a later date, especially when the worker continues to be paid and treated as an employee during the nonproductive status. There might be a basis for the termination date to be December 1, 2022 rather than November 1, 2022 given that the USCIS allows the officer to assess the circumstances and time spent in nonproductive status, although it would be far safer and more prudent to consider November 1, 2022 as the termination date.

One should also note a 1999 advisory opinion concerning reductions in force.  USCIS indicated that a severance package that offered terminated H-1B and L-1 employees their normal compensation and benefits for a 60-day period did not preserve the beneficiaries’ nonimmigrant status. Specifically, Branch Chief Simmons wrote, “An H-1B nonimmigrant alien is admitted to the United States for the sole purpose of providing services to his or her United States employer. Once H-1B nonimmigrant alien’s services for the petitioning United States employer are terminated, the alien is no longer in a valid nonimmigrant status. However, an H-1B worker who has not been terminated, but is on leave, can distinguish his or her situation from one who has indeed been terminated.”

 

Termination after Employment Sponsorship for Permanent Residence Already Commenced

 If the worker is already the beneficiary of an approved I-140 petition and is terminated, a new employer in addition to transferring the H-1B status may also file a new labor certification, and upon approval, file another I-140 petition. The priority date of the prior I-140 petition can still be retained.

Under 8 CFR 204.5(p), an employment authorization document (EAD) may be issued to beneficiaries of I-140 petitions in the United States on E-3, H-1B, H-1B1, O-1 or L-1 nonimmigrant status if they can demonstrate compelling circumstances and if their priority dates are not current. While compelling circumstances have not been defined in the rule, DHS has suggested illustrative circumstances in the preamble to the high skilled worker rule, which includes serious illness and disabilities, employer dispute or retaliation, other substantial harm and significant disruptions to the employer.   Regarding what may constitute significant disruption, DHS has suggested loss of funding for grants that may invalidate a cap-exempt H-1B status or a corporate restructure that may no longer render an L-1 visa status valid.

Anecdotal evidence suggests that USCIS has been very niggardly in issuing employment authorization under compelling circumstances.

If the Form I-485 application has been pending for 180 days or more, the worker can exercise job portability under INA 204(j) by taking up a job or being offered a job in a same or similar occupation with another employer. The underlying labor certification and I-140 will still remain valid upon exercising portability under INA 204(j). The applicant will need to submit Form I-485, Supplement J.

Under 8 CFR 245.25(b), “[t]he term “same occupational classification” means an occupation that resembles in every relevant respect the occupation for which the underlying employment-based immigrant visa petition was approved. The term “similar occupational classification” means an occupation that shares essential qualities or has a marked resemblance or likeness with the occupation for which the underlying employment-based immigrant visa petition was approved.”

It is also possible for an adjustment applicant to “port” to self-employment if employment prospects are bleak.

[This blog is for informational purposes, and should not be viewed as a substitute for legal advice]

 

 

 

 

 

 

Cyrus Mehta

Considerations When Terminating a Foreign Worker

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By Cyrus D. Mehta

Terminating an employee is always a very difficult decision, and requires the employer to comply with various state and federal laws. Terminating a noncitizen employee requires additional considerations under US immigration law. The American Immigration Lawyers Association has issued a  flyer  to its members that provides a useful guide to employers. In this blog, I will reiterate the guidance and also  provide further commentary and insights that would benefit the employer and the employee.

 

Terminating  H-1B, H-1B1 and E-3 Employees

The terminating of H-1B, H-1B1 and E-3 employees is the most burdensome because of the additional DOL rules that govern the underlying Labor Condition Application and which  intersect with the USCIS rules. If the termination is not effectuated properly with the USCIS, an employer will be liable for back wages until there is a bona fide termination.

The termination of H-1B, H-1B1 and E-3 employees requires:

•written notice to the employee,

•written notice to USCIS (if the petition was filed with USCIS), and

•withdrawal of the labor condition application (when possible).

AILA also correctly notes that the  cost of reasonable transportation to the employee’s country of last residence must be offered to H-1B and E-3 workers if the employer terminates the employee. The employer is not required to pay transportation for dependents. This offer is not required if the employee resigns or chooses not to leave the United States. We direct readers to our prior blog for more detailed analysis on when the employer may choose not to pay the return transportation expenses especially where the worker has chosen to stay in the US through other options such as  filing an extension of H-1B status through another employer or through filing an application of adjustment of status to permanent residence after marriage to a US citizen.

The AILA flyer also discusses the regulation that gives a grace  period of up to 60 days to workers in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 and TN status following termination to remain in the US and not be considered to be in violation of status. The worker can use this time to prepare to depart, find another employer that will file a petition within the grace period or change to another status.

 

When Does Termination Occur?

What is less clear is when termination occurs with respect to an H-1B worker. An employer can terminate on June 1, 2022 and still pay the employee the full wage but keep this person in a nonproductive status for several weeks or months. Let’s assume in this example that the worker is terminated on June 1, 2022,  but continues to be paid from June 1, 2022 till August 1, 2022 while in nonproductive status.  This nonproductive period is known as “garden leave” where the terminated worker is still considered an employee but not required to engage in productive work for the employer. The employer utilizes “garden leave” to disincentivize the employee from immediately working for a competitor. Does the termination in this scenario occur on June 1, 2022 or on August 1, 2022, which is when the garden leave period ends and the worker ceases to receive a salary in accordance with the terms of the H-1B petition?

According to a USCIS Policy Memo dated June 17, 2020, the USCIS has indicated that “[t]he failure to work according to the terms and conditions of the petition approval may support, among other enforcement actions, revocation of the petition approval, a finding that the beneficiary failed to maintain status, or both.” Based on this policy, it would be safer to consider the termination occurring on June 1, 2022 rather than August 1, 2022. Yet, the USCIS acknowledges that there may be situations when H-1B status is not violated if the worker is on leave under statutes such as the Family and Medical Leave Act or the Americans with Disabilities Act even if the worker is not paid.

The USCIS also gives the officer discretion to determine whether nonproductive status constitutes a violation of the beneficiary’s nonimmigrant classification. The following extract from the USCIS Policy Memo is worth noting:

In assessing whether a beneficiary’s non-productive status constitutes a violation of the beneficiary’s H-1B nonimmigrant classification, the officer must assess the circumstances and time spent in non-productive status. While neither statutes nor regulations state the maximum allowable time of non-productive status, the officer may exercise his or her discretion to issue a NOID or a NOIR to give the petitioner an opportunity to respond, if the time period of nonproductive status is more than that required for a reasonable transition between assignments. As always, if the officer encounters a novel issue, the officer should elevate that issue to local service center management or Service Center Operations, as appropriate.

A terminated H-1B worker may need more time to find another job and thus extend the commencement of the grace period to a later date, especially when the worker continues to be paid and treated as an employee during the nonproductive status. There might be a basis for the termination date to be August 1, 2022 rather than June 1, 2022 given that the USCIS allows the officer to assess the circumstances and time spent in nonproductive status, although it would be far safer and more prudent to consider June 1, 2022 as the termination date.

 

Terminating Employees in Other Nonimmigrant Statuses  

The AILA Flyer provides the following recommendations when terminating O-1, TN, L-1 and E-1/E-2 employees:

Termination of O-1 employees requires:

• written notice to USCIS and

• offer to pay the cost of reasonable transportation to the country of last residence.

Termination of TN and L-1 employees:

•There is no specific immigration notification requirement or return transportation requirement.

Termination of E-1/E-2 employee:

•While not mandatory, it is recommended that the U.S. consulate that issued the E visa be notified that employment was terminated.

 

I-140 Petition Withdrawal

 The AILA flyer wisely notes that there is no requirement that an employer withdraw an approved I-140 petition after a foreign worker’s employment is terminated. If withdrawal is desired, consider the timing of that request carefully, as it may have adverse consequences for the foreign worker. A withdrawal request made before 180 days have passed from approval will automatically revoke the petition. The worker will retain the priority date for future I-140 petitions but will be unable to rely on the I-140 approval to qualify for H-1B extensions beyond the standard six-year limit. Submission of a withdrawal request after 180 days have passed from approval will not result in automatic revocation of the I-140, and the terminated worker will be entitled to I-140 approval benefits, including continued eligibility for H-1B extensions beyond the six-year limit. The I-140 that is withdrawn after 180 days can still provide the legal basis for the H-4 spouse to receive employment authorization.

Thus, an employer may want to allow an I-140 to reach the 180-day mark before withdrawal as this would be  a benefit for the departing employee. When the attorney is representing the employer and employee, advising the employer to withdraw the I-140 at the 180 day mark or not withdraw at all will minimize the conflict of interest between the employer and employee at the time of termination.

Attorneys often do not wish to provide a copy of the I-140 petition to the employee who has been terminated even when it has been concurrently filed with an I-485 adjustment of status application. They view it as the employer’s I-140 petition. However, providing a copy of the I-140 petition and the underlying PERM labor certification would enable the terminated employee to file an I-485J that is required when the employee is porting to a new job in a same or similar occupation. Attorneys who do not wish to part with the I-140 should realize that there is a growing legal recognition of a foreign national’s interest in an I-140 petition where there is also a pending I-485. See, e.g., Matter of V-S-G- Inc., Adopted Decision 2017-06 (AAO Nov. 11, 2017) (clarifying that beneficiaries are “affected parties” under DHS regulations for purposes of revocation proceedings of their visa petitions and must be afforded an opportunity to participate in those proceedings”); see also Lexmark Intern. v. Static Control, 134 S. Ct. 1377 (2014) (holding that a plaintiff has the ability to sue when his or her claim is within the zone of interests a statute or regulation protects); USCIS, Guidance on Notice to, and Standing for, AC21 Beneficiaries about I-140 Approvals Being Revoked After Matter of V-S-G- Inc., PM-602-0152, Nov. 11, 2017 (“The traditional distinction of petitioner, beneficiary, and affected party breaks down, however, when the law allows the beneficiary to leave the employ of the original petitioner and take a job elsewhere without disrupting the validity of the underlying immigrant visa petition on which the pending adjustment application depends.”); Kurapati v. USCIS, 775 F.3d 1255 (11th Cir. 2014) (“We agree that a beneficiary of an I-140 visa petition who has applied for adjustment of status and has attempted to port under [AC21] falls within the class of plaintiffs’ Congress has authorized to challenge the denial of that I-140 visa petition. It is clear from the statutory framework that such immigrant beneficiaries fall within the zone of interests it regulates or protects.”); Khedkar v. USCIS et al, No. 1:2020cv01510 – Document 23 (D.D.C. 2021) (USCIS acted unlawfully be issuing an RFE on the pending I-140 to the petitioning employer rather than the beneficiary who had ported who was also a party in the  I-140 adjudication proceeding).

It would thus behoove the employer to share a redacted version of the I-140 and labor certification with the terminated employee especially when it is associated with an I-485 application. Information pertaining to the employer such as sensitive financial information and documents can obviously be redacted, although the employee must be given sufficient information to know the exact nature of the position and duties for which he or she was sponsored in order to file an I-485J and make a cogent case for portability under INA 204(j).

 

Dual Representation

Finally, the AILA flyer advises that the attorney is generally representing both the employer and the employee. While sole representation may be possible when filing the nonimmigrant visa petition and the foreign national employee is still overseas and thus not in contact with the attorney, at the time when the employee has come to the US and especially after the I-140 and I-485 have been filed, it would be difficult for the attorney to justify that he or she is only representing the employer when the employee has been advised about legal issues pertaining to maintenance of nonimmigrant status and adjustment of status.

AILA thus cautions:

There is a dual representation situation in immigration cases where a firm represents both the petitioner (employer) and worker (employee). When this occurs, the attorney is required to keep each party (petitioner and beneficiary) adequately informed of any

information related to that representation. Any information revealed by either party during this representation cannot be kept confidential from the other party. If looking for guidance related to the termination of a foreign worker, keep in mind that you should not mention specific names of individuals unless you intend to share this information with all parties.

Of course,  at the point of termination it becomes difficult and tricky to represent both employer and employee  because of potential conflicts of interest and especially when the employee seeks to port to another employer in a same or similar occupation. Under these circumstances, it would either require the attorney to withdraw from the representation of one or both clients or to continue to represent one or both clients if the clients have agreed to the conflict in advance or at the time of its occurrence. My article, “Finding the Golden Mean in Dual Representation”, available on AILA InfoNet at AILA Doc. No. 07081769, realizes that withdrawing from the matter entirely is impractical and provides guidance and strategies on how attorneys can set forth the parameters of the representation between the employer and employee client at the outset of the representation, and be able get agreement from both clients on how the attorney will handle the representation if there is termination down the road.

[This blog is for informational purposes and should not be relied upon as a substitute for legal advice.]

 

 

 

Cora-Ann Pestaina

To Amend, or Not to Amend: That is the Question For Visas Not Associated With a Labor Condition Application

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As the COVID-19 pandemic unfortunately rages on, employers nationwide continue to seek ways to keep their businesses open and reduce costs while also protecting their nonimmigrant employees. This blog has addressed, here, here and here, some of the unique challenges facing employers of H-1B and other nonimmigrant workers. Employers have basically come to accept the fact that the H-1B worker is tethered to the LCA and there are several changes that could necessitate the filing of an amended petition. But while it is generally understood that other work visas such as the E-1, E-2, L-1, O and TN visas afford greater flexibility because they are not subject to the LCA, the lack of specific governmental guidance means that employers are still unsure of what steps they can and cannot take with regard to their workers in these visa categories. This blog discusses best practices for employers considering remote work, furloughs, reduction in hours of work or salary reductions for employees in nonimmigrant visa categories without wage requirements.

Change in Work Location

One requirement common to all visa types is that USCIS must be notified if there is a material change in the terms of employment. Over the past year, many employers have had to close headquarters and implement remote work policies. Because the E, L, O and TN visas do not require an LCA, they are not as location specific as the H-1B and they afford more flexibility regarding a change in the nonimmigrant employee’s work location.

In the L-1 context, 8 C.F.R. § 214.2(1)(7)(i)(C) states that an employer should file an amended petition to reflect changes in approved relationships, additional qualifying organizations under a blanket petition, change in capacity of employment (i.e. from a specialized knowledge position to a managerial position), or any information which would affect the beneficiary’s eligibility under the Act. As long as the L-1 employee continues to perform the duties of the approved L-1, a change in work location, especially if only temporary, should not be considered sufficiently material to require the filing of an amendment. However, employers of nonimmigrant workers in L-1 status, and especially when the change in work location will be long-term, should consider the fact that L-1s are subject to USCIS site visits. The employer should consider whether it makes more sense to file the L-1 amendment in an effort to protect against the potential negative effect of a failed USCIS site visit to the initial L-1 worksite. This was exactly what happened in Matter of W- Ltd., ID# 1735950 (AAO Nov. 20, 2018). This non-precedent decision involved an employer who relocated the L-1 employee without filing an amendment. Upon discovering, after a site visit, that the L-1 was no longer employed at the original worksite, USCIS issued a Notice of Intent to Revoke (NOIR) the approved L-1 petition. This was despite the fact that the officer was able to speak to the L-1 employee’s supervisor at the worksite, interview the L-1 employee over the phone and collect additional information from the L-1 employee via email! The employer responded to the NOIR explaining the relocation and that the L-1 employee continued to perform in the same position. However, the L-1 was still revoked. USCIS stated that it was not evident that the beneficiary was currently employed in a managerial position pursuant to the terms and conditions of the approved petition. Upon appeal, the employer successfully argued that neither the statute, regulations, nor USCIS policy expressly require an L- I employer to file an amended petition in every instance where a beneficiary is transferred to a new worksite to perform similar duties for the same employer. The Administrative Appeals Office (AAO) agreed and held that the L-1 had been improperly revoked. While this decision is excellent it is still only a non-precedent decision and the AAO stated that such determinations must be made on a case-by-case basis. Employers considering permanently relocating their L-1 employees may wish to engage in a costs-benefits analysis to determine whether it would make more sense to simply file the amended petition rather than risk a failed site visit and a possible revocation which would likely have a negative impact on their business and on the L-1 employee who would not be able to continue to work and may even have to leave the US while the revocation is under appeal. If the L-1 obtained L-1 status based on a blanket L-1 petition and will be relocated to an office location already listed in the approved blanket petition, then the L-1 amended petition would not be required.

The E, O and TN visas are not currently subject to site visits. As long as the other terms and conditions of employment remain the same, it is not likely that an employer would encounter any issues in implementing a switch to remote work.

Furloughs

A ‘furlough’ is a temporary leave of absence from employment duties, without pay. Employers continue to consider furloughs as a means to decrease spending as the pandemic continues. Generally, a nonimmigrant worker may request unpaid leave for personal reasons, such as to take care of a sick parent, and the employer may grant this leave as long as it is well documented in the employee’s file, the period of absence is reasonable, and the employer-employee relationship is maintained throughout the leave. But a furlough is not a voluntary request for leave.

Since there has been no communication to the contrary from USCIS, a furlough can only be interpreted in one way and that is to effectively place the nonimmigrant worker employee out of status. An employer who wants to implement furloughs but maintain the ability of the E, L-1, O or TN worker to return to work at the end of the furlough period, could take advantage of the fact that employees in these nonimmigrant statuses, under 8 CFR 214.1(l)(2) are allowed a grace period of 60 days upon a cessation of their employment. Specifically, these nonimmigrant workers shall not be considered to have failed to maintain nonimmigrant status solely on the basis of a cessation of the employment on which their nonimmigrant classification was based, for up to 60 consecutive days. The grace period could be shortened if worker’s remaining nonimmigrant status validity period is less than 60 days. In this case, the grace period will end when the status expires. If the employee is rehired, under the same working conditions described in their nonimmigrant visa petition, before the end of their grace period, then they could go back to business as usual. A nonimmigrant worker may only be granted this grace period once during each authorized validity period. Accordingly, an employer could only utilize this furlough strategy once during the employee’s validity period without jeopardizing the employee’s nonimmigrant status and maintaining the ability to rehire the employee.

Reduction in the Number of Hours Worked

A reduction in the number of hours worked, switching from full-time to part-time employment, could be considered a material change necessitating the filing of an amended petition. Because the E, L-1, O and TN visas are not tied to an LCA, it may be possible for the employer to reduce the nonimmigrant employee’s work hours especially if that change will only be temporary. While it could be argued that the switch to part-time employment is not material, the issue must be analyzed on a case by case basis to ensure that all other terms and conditions of the nonimmigrant worker’s employment will remain the same especially if the change will be long-term. For example, if there are some job duties that will no longer be performed, perhaps because the company downsized, best practices may necessitate the filing of an amended petition to describe the new part-time position.

Salary Reduction

Once again, because there is no LCA and therefore, no prevailing wage requirement attached to the E, L-1, O and TN visas, a reduction in salary may be permissible as long as the other terms and conditions of employment continue to be fulfilled.  The facts of each case ought to be carefully examined. If the L-1 nonimmigrant worker will continue to work in their executive, managerial or specialized knowledge capacity, a reduction in salary, especially when company-wide, should likely have no effect on L-1 status. Cyrus Mehta discussed the effect of salary reductions here and pointed out that while it is quite settled that the L-1 worker’s employment is not necessarily determinative upon the amount or existence of a salary, the question of whether the L-1 worker’s salary is commensurate with his or her executive, managerial or specialized knowledge position is one that should be carefully considered, especially if that change is significant. For example, a substantial salary reduction, such as halving of the original salary, may be significant enough to warrant an amended L-1 petition. Again, this must be assessed on a case by case basis. If the L-1 worker continues to perform in the same capacity, and continues to be compensated from overseas, then it may still be defensible to not file an amendment.  Further, employers should be careful not to offer a wage that violates the minimum wage under the Fair Labor Standards Act. USCIS is prohibited from approving such an L-1 petition under its adopted decision, Matter of I Corp, Adopted Decision 2017-02 (AAO April 12, 2017).

For an E-2 investor, a reduction in salary is permissible as long as the E-2 enterprise does not become marginal. An enterprise is marginal if it does not have the present or future capacity to generate income to provide for more than a minimal living for the E-2 investor and family. An enterprise that continues to employ workers other than the investor and his or her family is not marginal. Similar to the above discussion in the L-1 context, employers of E-1/E-2 employees in managerial, executive, essential or specialized positions should always consider whether a new, lower salary is still commensurate with the nature of the E-2 position.

In the end, it is worth reiterating that every case must be examined on its own merits. While great flexibilities may exist with regard to what could be considered a material change in E, L, O and TN contexts, that doesn’t mean that the government won’t ask questions later. A careful costs-benefits analysis may lead to the conclusion that it is safest to file an amended petition rather than being forced to later defend current decisions. Having said that, the costs-benefits analysis must include the fact that USCIS rescinded its policy of requiring officers to defer to prior determinations in petitions for extension of nonimmigrant status. This policy has not yet been rescinded by the Biden administration. Employers must consider whether the bigger risk lies in filing an amended petition only to have it be denied for new reasons that were not at issue when the initial petition was approved or in not filing the amendment and leaving the matter open to potential questions or an NOIR in the future.

Cyrus Mehta

FAQ Relating to Skilled Workers in the Green Card Backlogs during COVID-19

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Skilled workers caught in the employment-based backlogs face great uncertainty during the COVID-19 crisis. They have to continue to work for employers who have sponsored them green cards while maintaining H-1B status. As explained in my previous FAQ relating to changes in working conditions for H-1B workers, the DOL rules do not provide much flexibility to employers who may be forced to cut wages or furlough employees in order to preserve jobs. If an H-1B worker’s position is terminated, he or she has a 60 day grace period to leave the US or to change to another status.  This FAQ focuses on immigration issues facing foreign nationals who are waiting for their green cards while in H-1B status, although some may also be in L-1 status. They are mainly born in India, and as a result of the “per country limits” in the employment-based first, second and third preferences, they have faced disproportionate waiting times (going into decades) when compared to those born in other countries. But for their country of birth, they would have been green card holders, or even US citizens, by now, and would not be facing peril during COVID-19 with respect to their immigration prospects.

1. My employer can no longer afford to employ staff and terminated me yesterday. I am in H-1B status and am also the beneficiary of an I-140 petition in the employment-based second preference. I was born in India and have a January 1, 2013 priority date. While I am in the 60 day grace period, can I request an employment authorization document (EAD) under “compelling circumstances?”

An Obama era regulation entitled “Retention of EB-1, EB-2 and EB-3 Immigrant Workers and Program Improvements Affecting High Skilled Nonimmigrant Workers” was promulgated  to provide modest relief to high skilled workers born mainly in India and China who were caught in the crushing backlogs in the employment-based preferences.

One significant provision in this regulation provides an employment authorization document (EAD) to beneficiaries of I-140 petitions in the United States on E-3, H-1B, H-1B1, O-1 or L-1 nonimmigrant status if they can demonstrate compelling circumstances and whose priority dates are not current. While compelling circumstances have not been defined in the rule, DHS has suggested illustrative circumstances in the preamble, which includes serious illness and disabilities, employer dispute or retaliation, other substantial harm and significant disruptions to the employer.   Regarding what may constitute significant disruption, DHS has suggested loss of funding for grants that may invalidate a cap-exempt H-1B status or a corporate restructure that may no longer render an L-1 visa status valid.

It appears from the discussion in the preamble to the regulation that compelling circumstances have to be out of the ordinary. The fact that the process may be taking a long time does not constitute a compelling circumstance. The DHS also stated in the preamble that mere unemployment would not rise up to the level of compelling circumstances, but more will have to be shown such as that the unemployment was as a result of a serious illness or employer retaliation. However, under the “other substantial harm” discussion, a beneficiary who loses a job based on the closure of a business where the beneficiary has been applying a skill set in high technology for years (such as artificial intelligence) and will not be able to establish that the same industry exists in the home country would be able to demonstrate compelling circumstances.  Interestingly, compelling circumstances could also include circumstances relating to a business startup, and that the beneficiary of an approved I-140 petition through the national interest waiver would be able to demonstrate compelling circumstances. Similarly, physicians working in medically underserved areas may also be able to demonstrate compelling circumstances.

Notwithstanding the various examples of compelling circumstances provided in the preamble to the rule, the plain language at 8 CFR 204.5(p) (iii) simply states:

USCIS determines, as a matter of discretion, that the principal beneficiary demonstrates compelling circumstances that justify the issuance of employment authorization

Anecdotal evidence suggests that USCIS has been very niggardly in issuing EADs under compelling circumstances since the promulgation of the rule in the fading days of Obama’s presidency in January 2017. Unemployment in itself may not be a basis as stated in the preamble, but one can try to argue compelling circumstances in the COVID-19 period more forcefully. When making a case for compelling circumstances, it should be argued, that the plain language of the regulation takes precedence over the preamble or the government’s subjective interpretation of the term. Until there are formal administrative interpretations, the term “compelling circumstances” is like a blank canvass, which can be colored by any credible and reasonable argument by the applicant. Still, one cannot bank on the USCIS issuing an EAD under compelling circumstances as a result of unemployment even during the COVID-19 period. Something more in addition to unemployment should be shown in order to make a convincing argument for compelling circumstances.

2. How long will I be able to stay in the US if I am given a work authorization under “compelling circumstances”, and how can I still get a green card?

The EAD may be renewed on an annual basis if such compelling circumstances continue to be met, even if it is a different sort of compelling circumstance from the initial, or if the beneficiary’s priority date under the I-140 petition is within one year of the official cut-off date.

How will this work? The job offer supporting the I-140 petition must still be valid. In other words, there is no legal basis under the final rule to port to another job on a standalone I-140 petition. If the employer withdraws the job offer supporting the I-140 petition, the beneficiary could have another employer offer a position, and sponsor the beneficiary through a new labor certification and I-140 petition. The priority date from the old I-140 petition can be recaptured.

Unless the beneficiary is maintaining a valid nonimmigrant status (or can seek the exemption under either INA 245(i) or 245(k)), he or she will not be able adjust status in the United States and would need to process the immigrant visa at an overseas US consulate. The beneficiary’s stay under a compelling circumstances EAD will be considered lawful presence, and will not trigger the 3 or 10 year bars upon departure. Alternatively, the beneficiary can leave and return to the United States in a nonimmigrant status such as an H-1B, and then file for adjustment of status here. The rule, unfortunately, does not provide for routine travel through advance parole while on a compelling circumstances EAD.

3. Will my spouse and teenage child be able to also get a compelling circumstances EAD?

Yes. Derivative family members can also apply for the EAD concurrently with the principal beneficiary of the I-140 petition, but they will only be issued the EAD after the principal family member is first granted the EAD. They too must be in nonimmigrant status at the time of filing the initial application.

4. I have a pending I-485 application, although the final action date in the State Department Visa Bulletin is not current this month. My employer can no longer afford to employ me and is in the process of shutting down the business.

If the Form I-485 application has been pending for 180 days or more, you can exercise job portability under INA 204(j) by taking up a job or being offered a job in a same or similar occupation with another employer. The underlying labor certification and I-140 will still remain valid upon exercising portability under INA 204(j). The applicant will need to submit Form I-485, Supplement J.

Under 8 CFR 245.25(b), “[t]he term “same occupational classification” means an occupation that resembles in every relevant respect the occupation for which the underlying employment-based immigrant visa petition was approved. The term “similar occupational classification” means an occupation that shares essential qualities or has a marked resemblance or likeness with the occupation for which the underlying employment-based immigrant visa petition was approved.”

It is also possible for an adjustment applicant to “port” to self-employment if employment prospects are bleak during the COVID-19 era.

 5. My employer cannot afford to employ me during the COVID-19 period and has terminated my employment in H-1B status, but still wants to continue to sponsor me for the green card hoping that the economic situation will change for the better by the time my priority date becomes current. I have not yet filed for adjustment of status.

Since the employment-based green card sponsorship is based on a prospective position, your employer can still continue with the I-140. If you leave for India within the 60 day grace period after cessation of employment and have not options to remain in H-1B status through another employer or change status, you can ultimately process the immigrant visa at a US consulate overseas upon your priority date becoming current. Given the current wait times in the employment-based first, second and third preferences for India, it may take many years, even decades, before you can get back to the US as a permanent resident. However, your employer will still be able to file an H-1B petition on your behalf in the future to bring you back before you obtain the green card. This H-1B petition will not be counted against the H-1B cap as you have been previously counted against the cap, and you will be entitled to three year extensions beyond the 6 year H-1B limitation.

6. Since there are no flights to India at this time, how can I depart the US within the 60 day grace period?

You could try requesting a change of status to B-2 visitor status before the end of the 60 day grace period by filing Form I-539, and asking for an additional six months in that status. Although you are the beneficiary of the an I-140 immigrant visa petition, which must be disclosed on Form I-539, the fact that you intend to ultimately apply for permanent residence should not conflict with your request for a change of status to B-2 if you can demonstrate your genuine inability to depart the US and that it will take a long time before you even become eligible for a green card. Furthermore, you can also argue that your intention is to apply for an immigrant visa at the US Consulate before you can come to the US as a permanent resident.

 7. I am in my sixth year of H-1B status with an approved I-140 petition. If the employer who filed the I-140 petition no longer wishes to employ me now or in the future, how can I still take advantage of this I-140 petition and get a green card through another employer?

If another employer files a new labor certification and I-140 petition on your behalf, the priority date of the original I-140 petition can still be retained even if the former employer withdraws the petition. Since you have already been counted under a prior H-1B cap, the new employer can file another H-1B petition so that you can reenter the US in H-1B status. You will be eligible for 3 year extensions beyond the six year limitation of the H-1B visa until your priority date becomes current.

8. Will President Trump’s latest green card ban impact me or my family?

President Trump’s Proclamation will ban people seeking immigrant visas at a US Consulate for 60 days from April 23, 2020. Therefore, it will not impact those who are already in the US and seeking permanent residence through adjustment of status. Even if you depart the US to process for an immigrant visa at a US Consulate, the ban will not apply to one who was in the US on the effective date of the Proclamation, which was April 23, 2020. The Proclamation will nevertheless ban derivative family members who are processing for immigrant visas at a US consulate even if the principal applicant adjusted status in the US unless they were in the US on April 23, 2020.

 

Cyrus Mehta

FAQ on Changes in Salary and Other Working Conditions for H-1B Workers During the COVID-19 Crisis

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The novel coronavirus (SARS-CoV-2), which causes the disease COVID-19, is a pandemic threatening populations in the United States and worldwide. The US economy has virtually shut down.   Many employers who have been forced to shut down or modify their businesses have been severely impacted and may no longer be able to afford to pay H-1B workers the required wage.  Based on my recent observations, many employers fortunately still view H-1B workers as a vital resource and do not wish to terminate their H-1B workers. They, however, do want to know whether they can temporarily reduce wages or temporarily suspend employment or put them on furlough. Likewise, H-1B workers fearful of termination also have questions about grace periods and unemployment benefits.

Although none of us have seen a pandemic as fast moving and horrific as COVID-19 in our lifetimes, we have experienced the rigidity of DOL rules governing H-1B workers in other disasters such as 9/11, the Great Recession of 2008 and Hurricane Sandy. For instance, an employer is not permitted to bench an H-1B worker for a temporary period due to economic hardships without risking liability for back wages and other draconian sanctions. Correspondingly, the H-1B worker could also be in danger of falling out of status if no longer employed.  In prior disasters, the inflexibility of the DOL rules governing the wages and other working conditions of H-1B workers came into sharp focus and caused great hardship to employers and the H-1B workers. These rules have not changed, and the same inflexible rules unfortunately equally apply with equal force today during the COVID-19 crisis, which appears to be far worse than other recent disasters.

Below are frequently asked questions (FAQ), which I will endeavor to answer. Since there are plenty of grey areas with no definitive answers, my interpretations of these rules are based on my experience in advising employers and H-1B workers during past disasters and presently during the COVID-19 crisis.  I also refer readers to two excellent AILA practice advisories on this topic, here and here. It is hoped that the DOL and USCIS will provide more flexibility and compassion given that the COVID-19 crisis is worsening. But until that happens, here are my responses.

1. Must I Pay H-1B Workers Even if I Want to Temporarily Suspend Employment During the COVID-19 Crisis?

An employer can incur liability if an H-1B worker is in nonproductive status. According to 20 CFR 655.731(c)(7)(i),   if the H-1B worker is in nonproductive status due to a decision of the employer, such as lack of work or lack of a permit or license, the employer must still pay the H-1B worker the required wage. Thus, if the employer decides to temporarily suspend employment, bench or furlough the employee, the required wage must still be paid notwithstanding the sudden economic downturn caused by the COVID-19 pandemic. Failure to pay the required wage can result in fines, back wage obligations, and in some serious cases debarment from the DOL’s temporary and permanent immigration programs for a period of time. Pursuant to 20 CFR 655.810(d), DOL can also notify USCIS to no longer approve immigrant and non-immigrant petitions filed by the employer.

2. What if the H-1B worker voluntarily requests leave?

Under 20 CFR 655.731(c)(7)(ii), an employer is not required to pay the required wage to an employee in non-productive status, when the employee is non-productive at the employee’s voluntary request and convenience, such as taking an extended holiday or caring for ill relative,  or because they are unable to work, as a result of maternity leave or automobile accident which temporarily incapacitates the H-1B worker due to a reason which is not directly work related and required by the employer. 20 CFR 655.731(c)(7)(ii) nevertheless requires the employer  to pay the required wage if the employee’s non-productive period was subject to payment under the employer’s benefit plan or other statutes such as the Family and Medical Leave Act (29 U.S.C. 2601 et seq.) or the Americans with Disabilities Act (42 U.S.C. 12101 et seq.).

While leave based on a COVID-19 illness or related need to quarantine will also be considered a leave upon the behest of the employee, employers will most likely need to treat H-1B workers in the same way as they would with other employees under their COVID-19 leave policies, and will also be subject to the CARES Act that guarantees extended paid leave to all employees relating to COVID-19 illness or quarantine.

So long as the H-1B worker is employed, being on leave, paid or unpaid, will not undermine their ability to maintain H-1B status.

The DOL will carefully investigate whether the employee’s request for leave is genuine. The leave should not be forced upon the employee as a pretext for the employer’s inability to pay the required wage due to lack of work. Such contrived leave would be viewed as a decision by the employer to place the worker in unproductive status, thus rendering the employer liable for sanctions.

3. Can the employer temporarily reduce the wage?

The required wage should be the higher of the actual or prevailing wage, which is determined at the time of filing the Labor Condition Application (LCA). The actual wage is the wage paid to similarly situated workers in the employer’s organization within the area of intended employment. The prevailing wage is the wage rate for the occupational classification in the area of employment, which is generally based on a wage survey of a cross section of employers.

What if the employer wishes to drop the required wage below what was indicated in the LCA and the I-129 petition for H-1B classification? This supposes that the required wage is still at or above the prevailing wage, although the actual wage paid to similarly situated workers has dropped. Since the employer represented on the forms that it would pay a specific required wage, it may not be prudent to reduce the wage even if it is still meets the definition of the required wage. Under these circumstances, the safest course of action is to file an amendment to the H-1B petition.

Another argument that can be made against amending the H-1B petition when there is a reduction in the required wage from what was stated on the forms is that when the required wage increases during the validity period of the H-1B, an employer is not required to file an amendment to the H-1B petition and so the same argument can be made against an amendment when there is a reduction in the wage, so long as it still is the required wage. This argument would have greater force if the H-1B worker’s salary went up after the LCA was filed and it is  now  being reduced to the wage that was stated on the LCA and Form I-129.

4. Can the employer convert the employment of the H-1B worker from full time to part time employment?

Yes, although the employer will be required to file an amended H-1B petition. Converting the employment from full time to part-time employment would be considered a material change as the employer must obtain a new LCA reflecting the part time wage and employment, and thus file an amendment to the H-1B petition under USCIS guidance based on Matter of Simeio Solutions. The H-1B worker can commence with the part-time employment upon the filing of the amended H-1B petition.

5. Can the employer reduce the wage during the COVID-19 period, but still guarantee a bonus to the H-1B worker later on to make up the deficit?

If the employer lowers the salaries for H-1B employees below the required wage, according to 20 CFR 655.731(c)(2)(v), an employer can give a guaranteed bonus in the future that may be credited toward satisfaction of the required wage obligation. The bonus cannot be conditional or contingent on some event such as the employer’s annual profits.  While I would never advise this in normal times, I believe in these unusually hard COVID-19 times, this may be defensible but one cannot tell for sure how DOL will view it if there is an investigation. Once the bonus is paid, it must be paid as a salary and reported as earnings with appropriate taxes and FICA contributions withheld and paid.

6. May the employer reduce the required wage and instead offer the equivalent value of the deficit in stock options?

No. The employer is required to guarantee the required wage, and this must be paid in the form of wages reported to the Internal Revenue Service (IRS) as the employee’s earnings, with appropriate withholding for the employee’s tax paid to the IRS and as required under the Federal Insurance Contributions Act (FICA). A stock option would not guarantee the required wage as the value of a stock option can go up or down. A stock option also does not comply with the requirement that the compensation must be paid as a wage that is reported to the IRS, and appropriate tax and FICA contributions be withheld.

7. Does the employer’s obligations to pay the H-1B worker end when the H-1B worker’s employment is terminated?

The H-1B worker need not get paid if there has been a bona fide termination of the employment relationship. DHS regulations require the employer to notify the DHS that the employment relationship has been terminated so that the petition is canceled (8 CFR 214.2(h)(11)), and require the employer to provide the employee with payment for transportation home under certain circumstances (8 CFR 214.2(h)(4)(iii)(E)). If the employer does not notify the USCIS about the termination and provide the employee with payment for the return transportation home, the DOL will not consider it as a bona fide termination and may still hold the employer liable for back wages. However, note that in Vinayagam v. Cronous Solutions, Inc., ARB Case No. 15-045, ALJ Case No. 2013-LCA-029 (ARB Feb. 14, 2017) the Administrative Review Board held that an employer’s failure to pay return transportation costs home of a terminated H-1B employee was not fatal when the worker did not return to her home country on her own volition.

For further details on effectuating a bona fide termination and the exceptions to meeting all the requirements, see “Employer Not Always Obligated to Pay Return Transportation Costs of Terminated Worker”, https://blog.cyrusmehta.com/2017/03/employer-not-always-obligated-to-pay-return-transportation-cost-of-terminated-h-1b-worker.html

8. Is the H-1B worker entitled to a grace period upon termination of employment?

8 CFR 214.1(l)(2) allows E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1or TN nonimmigrant workers a grace period of 60 days based upon a cessation of their employment. The 60-day grace period is indeed a salutary feature and was not around during prior disaster episodes. Up until January 17, 2017, whenever workers in nonimmigrant status got terminated, they were immediately considered to be in violation of status. There was also no grace period to depart the United States. Therefore, if a worker got terminated on a Friday, and did not depart on the same day, but only booked the flight home on Sunday, this individual would need to disclose on a future visa application, for all times, that s/he had violated status. Derivative family members, whose fortunes were attached to the principal’s, would also be rendered out of status upon the principal falling out status. Thus, the 60-day grace period not only gives the worker more time to leave the United States, but it also provides a window of opportunity to transition to another employer who can file an extension or change of status within the 60-day period. Similarly, the worker could also potentially change to some other status on his or her own, such as to F-1, after enrolling in a school. Prior to January 17, 2017, nonimmigrant workers who fell out of status upon cessation of their employment, and sought a late extension or change of status had to invoke the USCIS’s favorable discretion pursuant to 8 CFR 214 .1(c)(4) and 8 CFR 248(b)(1)-(2) by demonstrating, among other things, extraordinary circumstances.

When an H-1B worker is terminated, it is a common practice for a highly compensated employee to first be put in inactive status, known as “garden leave” but still considered as an employee and paid the full salary. The final termination date occurs at a later point. Although one needs to view these scenarios on a case by case basis, a good argument can be made that the 60 day grace period starts running from the final termination date and not from the date when the H-1B worker was placed on garden leave.

For further details on the 60 day grace period, see “Analysis of the 60 Day Grace Period for Nonimmigrant Workers”, https://blog.cyrusmehta.com/2017/07/analysis-of-the-60-day-grace-period-for-nonimmigrant-workers.html

9. Can the employer rehire the H-1B employee within 60 days of the termination?

If the H-1B worker is still within the validity period under H-1B classification, then arguably this worker can resume employment with the same employer. The worker never lost status during that 60-day grace period, and if joining the same employer, may not need to file an extension with the same employer. This is also a situation where the worker would most likely not be able to get a second 60-day grace period within the validity period of the same petition or admission. Legacy INS has indicated that when an H-1B worker returns to the former employer after a new extension of status has been filed through the new employer, the first company need not file a new H-1B petition upon the H-1B worker’s return as the first petition remains valid. See Letter, LaFluer, Chief, Business and Trade Branch, Benefits Division, INS, HQ 70/6.2.8 (Apr. 29, 1996); Letter, Hernandez, Director, Business and Trade Services, INS (April. 24, 2002).

Note, however, that if the employer laid off the H-1B worker, and did not notify USCIS regarding the termination, the employer could still potentially be liable for back wages under its obligation to pay the required wage under the Labor Condition Application for failing to effectuate a bona fide termination. See Amtel Group of Fla., Inc. v. Yongmahapakorn, ARB No. 04-087, ALJ No. 2004-LCA-0006 (ARB Sept. 29, 2006). Therefore, if the employer notified the USCIS, which resulted in the withdrawal of the H-1B petition, the same employer would need to file a new H-1B petition within the 60-day grace period.

10. Since most H-1B workers are required to work from home, what rules govern and what actions does the employer need to take?

Employers who have instructed their employees to work from home must ensure they still comply with Department of Labor rules about the geographic scope of positions; for example, as specified for H-1B (specialty occupation) employees on the labor condition application.

If an employee works from a home which is within commuting distance of the workplace, then there is no need to file an amendment. However, a copy of the original posting should be posted again in two places in the employee’s home, although it does not make sense to do so since the posting cannot be seen by other employees. Until the DOL provides clarification, following this procedure would be in compliance.  Alternatively, the employer may provide electronic notification to affected workers in the area of intended employment.

If an employee works from a home which is NOT within commuting distance from the workplace, the employer should obtain a new LCA for that location and file an H-1B amendment. Since there is a 30 working day short term placement exception (per year), the employer can file the amendment within 30 working days of the move to a home location that is not within commuting distance.

On how to effectuate a compliant electronic notification, see the “Nuts and Bolts of Complying with the H-1B Notice Requirements”, https://blog.cyrusmehta.com/2019/03/the-nuts-and-bolts-of-complying-with-the-h-1b-notice-requirements.html . An employer can post notice on its own website or on a web portal of an LCA hosting service, but must still inform affected workers of the existence of this web posting through notification via e mail, the company intranet,  through Slack channels or by providing hard copy notification of the existence of the notice on the website.

Although notice must be provided before the H-1B worker begins work at the new location, the DOL has allowed to a 30 day extended period to provide such notice. For further details see # 4 of DOL’s recently issued COVID-19 guidance at https://www.foreignlaborcert.doleta.gov/pdf/DOL-OFLC_COVID-19_FAQs_Round%201_03.20.2020.pdf

 

11. Do these regulations apply to other workers in nonimmigrant statuses who may be employed?

They would apply to any nonimmigrant visa statuses that require an underlying LCA such as the E-3 for Australians and the H-1B1 for  nationals of Singapore and Chile. The same rules governing wages and other working conditions for H-1B workers would apply to workers in E-3 or H-1B1 status.

There is more flexibility with respect to workers in nonimmigrant statuses. For example, if an intracompany transferee’s in L-1A or L-1B status is reduced, it may not have an adverse impact so long as the L-1 worker is still working under the appropriate L-1 classification as an executive or manager, or as a specialized knowledge employee.

However, if there is cessation of employment, other nonimmigrant workers will fall out of status after the 60 day grace period.

12. Can Terminated H-1B Workers Claim Unemployment Benefits?

Although one must look at state rules, generally speaking, H-1B visa holders cannot claim unemployment benefits because they will not be able to work in the future due to the loss of their status as a result of the loss of the job. The legal status of an H-1B workers is based on employment, and once the H-1B worker is terminated, they are not able to work in the future due to lack of that status.

On the other hand, unemployment benefits may work for an H-4 spouse with an EAD if the H-1B spouse is in status. The H-4 spouse’s ability to work in the future is linked to the H-1B status of the spouse, and if the H-4 spouse is terminated, s/he can work in the future if the H-1B spouse continues to maintain that H-1B status. Of course, one has to look at the state rules concerning unemployment insurance regarding how long one will be able to work in the future in order to be eligible to make such a claim.

If an H-4 spouses can claim unemployment benefits, they will likely not be impacted by the new public charge definition as unemployment is not a public benefit. One has earned the unemployment insurance by contributing to it while employed.

This blog is for informational purposes and should not be relied upon as a substitute for legal advice. 

Cyrus Mehta

Analysis of the 60-Day Grace Period for Nonimmigrant Workers

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The Department of Homeland Security issued final regulations on November 17, 2016 entitled “Retention of EB-1, EB-2 and EB-3 Immigrant Workers and Program Improvements Affecting High Skilled Nonimmigrant Workers” to provide relief to high skilled workers born mainly in India and China who are caught in the crushing backlogs in the employment-based preferences. The rule took effect on January 17, 2017. My prior blog analyzed the key provisions of the rule. This blog examines the provision that authorizes a 60-day grace period for workers whose jobs get terminated while employed in nonimmigrant status.

The rule provides two grace periods to nonimmigrant visa holders. 8 CFR 214.1(l)(1) provides for a 10-day grace period at the start and end of the validity period for E-1, E-2, E-3, H-1B, L-1 and TN nonimmigrant workers [note that H-2B, H-3, O and P nonimmigrants already enjoy 10-day grace periods in existing regulations].  8 CFR 214.1(l)(2) allows E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1or TN nonimmigrant workers a grace period of 60 days based upon a cessation of their employment. The 60-day grace period is indeed a salutary feature. Up until January 17, 2017, whenever workers in nonimmigrant status got terminated, they were immediately considered to be in violation of status. There was also no grace period to depart the United States. Therefore, if a worker got terminated on a Friday, and did not depart on the same day, but only booked the flight home on Sunday, this individual would need to disclose on a future visa application, for all times, that s/he had violated status. Derivative family members, whose fortunes were attached to the principal’s, would also be rendered out of status upon the principal falling out status. Thus, the 60-day grace period not only gives the worker more time to leave the United States, but it also provides a window of opportunity to transition to another employer who can file an extension or change of status within the 60-day period. Similarly, the worker could also potentially change to some other status on his or her own, such as to F-1, after enrolling in a school. Prior to January 17, 2017, nonimmigrant workers who fell out of status upon cessation of their employment, and sought a late extension or change of status had to invoke the USCIS’s favorable discretion pursuant to 8 CFR 214 .1(c)(4) and 8 CFR 248(b)(1)-(2) by demonstrating, among other things, extraordinary circumstances.

Several questions have come up relating to when the 60-day grace period will trigger and how often can it be used. It would be useful to reproduce the provisions authorizing grace periods in their entirety for purposes of analyzing these questions.

§214.1 Requirements for admission, extension, and maintenance of status

(l) Period of stay. (1) An alien admissible in E-1, E-2, E-3, H-1B, L-1, or TN classification and his or her dependents may be admitted to the United States or otherwise provided such status for the validity period of the petition, or for a validity period otherwise authorized for the E-1, E-2, E-3, and TN classifications, plus an additional period of up to 10 days before the validity period begins and 10 days after the validity period ends. Unless authorized under 8 CFR 274a.12, the alien may not work except during the validity period.

(2) An alien admitted or otherwise provided status in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 or TN classification and his or her dependents shall not be considered to have failed to maintain nonimmigrant status solely on the basis of a cessation of the employment on which the alien’s classification was based, for up to 60 consecutive days or until the end of the authorized validity period, whichever is shorter, once during each authorized validity period. DHS may eliminate or shorten this 60-day period as a matter of discretion. Unless otherwise authorized under 8 CFR 274a.12, the alien may not work during such a period.

(3) An alien in any authorized period described in paragraph (l) of this section may apply for and be granted an extension of stay under paragraph (c)(4) of this section or change of status under 8 CFR 248.1, if otherwise eligible.

The answers to the questions I raise are not definitive as all of them involve a case of first impression, although some are based on the DHS’s responses to comments in the preamble, and USCIS may disagree. I do hope, however, that my attempted responses will be helpful for those who need to claim the grace period in situations that are not so clear cut.

How many times can I use the 60-day grace period?

The rule at 214.1(l)(2) states that you are entitled to the 60-day grace period “once during each authorized validity period.” 214.1(l)(1) defines validity period as a nonimmigrant who “may be admitted to the United States or otherwise provided such status for the validity period of the petition, or for a validity period otherwise authorized for the E-1, E-2, E-3, and TN classifications, plus an additional period of up to 10 days before the validity period begins and 10 days after the validity period ends.”

It thus appears that you are entitled to the 60-day grace period once during each validity period of the petition. Take for example an individual who has been admitted into the US under an H-1B visa petition with a validity period till December 31, 2017. If she gets terminated from her job with Company A, she will be entitled to the 60-day grace period that allows her to maintain H-1B status despite the cessation of employment. She finds a new job with Company B, which files an H-1B petition and extension of status within this 60-day period, resulting in an H-1B petition that is valid from August 1, 2017 to August 1, 2020. She arguably is now within a new validity period. If she gets terminated again by Company B, she should be able to seek another 60-day grace period.

The following extract from the preamble can aid us in this interpretation:

An individual may benefit from the 60-day grace period multiple times during hir or her total time in the United States; however, this grace period may only apply one time per authorized nonimmigrant validity period.

What if the new validity period filed by new employer Company B ends on the same date as the validity period of the petition filed by Company A?

Let’s now assume that December 31, 2017 is the final sixth year of this individual’s time spent in H-1B status. When the new employer, Company B, files the H-1B petition during the 60-day grace period, she is only entitled to H-1B status until December 31, 2017, which is the same validity period as the prior H-1B petition of Company A. If Company B terminates her, will she be entitled to a new 60-day grace period? The preamble to the final rule provides this guidance: “DHS clarifies that, while the grace period may only be used by an individual once during any single authorized validity period, it may apply to each authorized validity period the individual receives.” Although the end date of Company B’s H-1B petition, December 31, 2017, is the same as Company A’s, this is arguably still a new validity period even though it ends on the same day as the prior validity period. Therefore, she can argue that she is entitled to a new 60-day grace period. A new validity period should not be defined as having a different time frame from the older validity period; rather a new validity period resulted because of an extension request through a different petition. However, it is possible that USCIS may reach a different conclusion.

I got laid off by my employer while in H-1B status because the employer did not have enough business. Within 60 days, the employer got new business and rehired me again. Can I just resume employment with that employer without filing a new extension of status petition or leaving and returning to US again in H-1B status?

The purpose of the rule, especially at 214.1(l)(3), is to allow a worker to change or extend status within the 60-day period or to depart the US. However, if the worker is still within the validity period under H-1B classification, then arguably this worker can resume employment with the same employer. The worker never lost status during that 60-day grace period, and if joining the same employer, may not need to file an extension with the same employer. This is also a situation where the worker would most likely not be able to get a second 60-day grace period within the validity period of the same petition or admission. Legacy INS has indicated that when an H-1B worker returns to the former employer after a new extension of status has been filed through the new employer, the first company need not file a new H-1B petition upon the H-1B worker’s return as the first petition remains valid. See Letter, LaFluer, Chief, Business and Trade Branch, Benefits Division, INS, HQ 70/6.2.8 (Apr. 29, 1996); Letter, Hernandez, Director, Business and Trade Services, INS (April. 24, 2002).

Note, however, that if the employer laid off the H-1B worker, and did not notify USCIS regarding the termination, the employer could still potentially be liable for back wages under its obligation to pay the required wage under the Labor Condition Application for failing to effectuate a bona fide termination. See Amtel Group of Fla., Inc. v. Yongmahapakorn, ARB No. 04-087, ALJ No. 2004-LCA-0006 (ARB Sept. 29, 2006). Therefore, if the employer notified the USCIS, which resulted in the withdrawal of the H-1B petition, and the same employer files a new H-1B petition within the 60-day grace period, it could arguably create a new validity period. If the employee is terminated for a second time, it may be possible to argue that he is entitled to a new 60-day grace period.

Can I carry over unused days if I do not use all 60 days of the grace period?

The 60 days must be used consecutively and any unused days may not be used later in the same validity period or carried over into a subsequent validity period.

What if my job gets terminated when there are less than 60 days left of my nonimmigrant status?

The rule clearly states that you are entitled to a grace period of 60 consecutive days or until the end of the authorized validity period, whichever is shorter.

Can I get an additional 10 days grace period beyond the 60-day grace period?

In most cases the answer is “No”. However, there may be an exception where the cessation of employment was within the last 60 days of the validity period, and the worker was provided with a grace period of 10 days upon his last admission to the US. Under this limited case, the DHS will consider the nonimmigrant to have maintained status for 60 days immediately preceding the expiration of the validity period plus an additional 10 days. If the cessation of employment occurred when there were only 30 days left before the end of the validity period, then the individual should conceivably be able to claim a 30-day grace period plus 10 days.

Prior to my validity period ending in L-1A status, the same employer filed an extension of status, which got denied after the end of the prior validity period in L-1A status. Am I entitled to the 60-day grace period?

No. There is no grace period after an approved validity period has ended and when an extension of stay has been denied after that period. The 60-day grace period is intended to apply to individuals whose employment ends prior to the end of their approved validity period.

I ported while in H-1B status from Company A to Company B, and the petition for new employment is denied prior to the expiration of the validity period of the previous petition. Am I entitled to a 60-day grace period?

Yes. In this scenario, and as the preamble to the rule suggests, you will be entitled to a 60-day grace period. However, you will not be entitled to the grace period if the extension request is denied after the expiration of the validity period of the H-1B petition of Company A.

At issue is whether the grace period will be available if the same Company B files the H-1B again or must a new Company C file the new employer and extension petition? Since the grace period is applicable to the worker upon cessation of employment, it should not matter whether Company B or Company C files the new H-1B extension. However, readers should be forewarned that the USCIS still has discretion in determining whether the 60-day grace period is applicable or not. If Company B’s petition was denied for egregious reasons relating to fraud, the USCIS may likely not exercise its discretion favorably with respect to honoring the grace period.

Does it matter whether the employer terminates me or I leave the employer in order to be entitled to the 60-day grace period?

214.1(l)(2) states that the 60-day grace period triggers “on the basis of a cessation of the employment on which the alien’s classification was based.” Therefore, arguably it should not matter whether the termination occurred on the employer’s or the employee’s initiative. Again, the USCIS has discretion to decide whether a grace period will be applicable on a case by case basis.

Can I work during either the 60-day or 10-day grace period?

No. Because the rule was meant to facilitate the ability of nonimmigrants to transition to new employment, seek a change of status or depart the US, the rule clearly prohibits any form of employment.

The preamble to the rule even suggests that a nonimmigrant worker may not use the 60-day or 10-day period to work to start their own businesses too. However, if the activities for starting a business do not constitute work, especially if they would be permissible “non-work” activities under the B-1 visa, then one could argue that the person did not engage in prohibited activity during the grace period. However, this is risky given that the preamble has not made any distinction between work and non-work activities relating to the startup of a business.

Can I travel during either the 60-day or 10-day grace period in case of an emergency?

Although the rule is silent about travel, it is strongly advised that the nonimmigrant worker not travel during any of the grace periods. When the individual returns from the trip abroad, he or she will not be coming to join an employer and CBP will most likely not admit her. One of the purposes of the grace period is to facilitate departure from the US, and so it will be going against the intent of the rule if the individual departs and then tried to seek admission again. In the F-1 context, which provides a 60-day grace period to prepare for departure, see 8 CFR 214.2(f)(5)(iv), travelling back to the US is clearly not contemplated during this period.

Can I port to a new employer who files an H-1B petition during the 60-day grace period after my job was terminated by the old employer?

Yes. You are still considered to be maintain H-1B status during the grace period. If a new employer files the H-1B petition, you can exercise portability pursuant to INA 214(n) by commencing employment for the second employer after the H-1B petition has been filed with USCIS.

Can I request employment authorization in compelling circumstances while within the grace period?

Yes. The rule at 204.5(p) clearly states that the principal beneficiary of an approved petition when the priority date is not current can request a work authorization under compelling circumstances if the individual is in E-3, H-1B, H-1B1, O-1 or L-1 nonimmigrant status, “including the periods authorized by 214.1(l)(1) and (2)…..”

If I am unable to find a new job within the 60-day grace period, and find one after 60 days, and the new employer files the H-1B petition 80 days after the cessation of employment with my first employer, am I still eligible for an extension of H-1B status with the new employer?

The USCIS always has discretion to accept late filings based on extraordinary circumstances pursuant to 8 CFR 214.1(c)(4).

Can the USCIS give me less than 60 or 10 days of the grace period?

As noted, the USCIS can always exercise its discretion and will determine whether the facts and circumstances warrant shortening a grace period on a case by case basis. The following extract from the preamble is worth noting:

At the time a petitioner files a nonimmigrant visa petition requesting an extension of stay or change of status, DHS will determine whether facts and circumstances may warrant shortening or refusing the 60- day period on a case-by-case basis. If DHS determines credible evidence supports authorizing the grace period, DHS may consider the individual to have maintained valid nonimmigrant status for up to 60 days following cessation of employment and grant a discretionary extension of stay or a change of status to another nonimmigrant classification. See 8 CFR 214.1(c)(4) and 248.1(b). Such adjudications require individualized assessments that consider the totality of the circumstances surrounding the cessation of employment and the beneficiary’s activities after such cessation. While many cases might result in grants of 60-day grace periods, some cases may present factors that do not support the favorable exercise of this discretion. Circumstances that may lead DHS to make a discretionary determination to shorten or entirely refuse the 60-day grace period may include violations of status, unauthorized employment during the grace period, fraud or national security concerns, or criminal convictions, among other reasons.

The same logic would apply to the USCIS’s ability to exercise discretion with respect to the 10-day grace period.

How do I apply for the 60-day grace period?

There is no specific application or form. The USCIS will make an after the fact determination when you apply for an extension of status or change of status upon the cessation of employment. It is advisable to explain that you are using the grace period in a letter or affidavit.

(This blog is for informational purposes only and should not be considered as a substitute for legal advice)

Cyrus Mehta

Analysis of Key Provisions of the High Skilled Worker Final Rule

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The Department of Homeland Security issued final regulations on November 17, 2016 entitled “Retention of EB-1, EB-2 and EB-3 Immigrant Workers and Program Improvements Affecting High Skilled Nonimmigrant Workers” to provide relief to high skilled workers born mainly in India and China who are caught in the crushing backlogs in the employment-based preferences. While the final rule does not make too many modifications from the proposed rule, I will highlight some of the provisions that can potentially alleviate the problems caused by the long waits. This blog’s focus is not to explain every aspect of the proposed rule, and refers readers to Greg Siskind’s excellent summary, but will analyze some of the most relevant provisions that affect backlogged immigrants.

The centerpiece of the rule is to provide a basis to apply for an employment authorization document (EAD) to beneficiaries of I-140 petitions in the United States on E-3, H-1B, H-1B1, O-1 or L-1 nonimmigrant status if they can demonstrate compelling circumstances and whose priority dates are not current. While compelling circumstances have not been defined in the rule, DHS has suggested illustrative circumstances in the preamble, which includes serious illness and disabilities, employer dispute or retaliation, other substantial harm and significant disruptions to the employer.   Regarding what may constitute significant disruption, DHS has suggested loss of funding for grants that may invalidate a cap-exempt H-1B status or a corporate restructure that may no longer render an L-1 visa status valid.

It appears from the discussion in the preamble that compelling circumstances have to be out of the ordinary. The fact that the process may be taking a long time does not constitute a compelling circumstance. The DHS also stated in the preamble that mere unemployment would not rise up to the level of compelling circumstances, but more will have to be shown such as that the unemployment was as a result of a serious illness or employer retaliation. However, under the “other substantial harm” discussion, a beneficiary who loses a job based on the closure of a business where the beneficiary has been applying a skill set in high technology for years (such as artificial intelligence) and will not be able to establish that the same industry exists in the home country would be able to demonstrate compelling circumstances.  Interestingly, compelling circumstances could also include circumstances relating to a business startup, and that the beneficiary of an approved I-140 petition through the national interest waiver would be able to demonstrate compelling circumstances. Similarly, physicians working in medically underserved areas may also be able to demonstrate compelling circumstances.

Despite the extensive discussion of what may constitute compelling circumstances in the preamble of the rule, the plain language at 8 CFR 204.5(p)(iii) simply states:

USCIS determines, as a matter of discretion, that the principal beneficiary demonstrates compelling circumstances that justify the issuance of employment authorization

When making a case for compelling circumstances, it should be argued that the plain language of the regulation takes precedence over the preamble. Until there are administrative interpretations, the term “compelling circumstances” is like a blank canvass, which can be colored with any sort of creative and credible argument. The applicant making the argument for compelling circumstances can invoke the U.S. Supreme Court’s opinion in Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945) for support that it is the plain language of the rule that governs:

Since this involves an interpretation of an administrative regulation, a court must necessarily look to the administrative construction of the regulation if the meaning of the words used is in doubt. The intention of Congress or the principles of the Constitution in some situations may be relevant in the first instance in choosing between various constructions. But the ultimate criterion is the administrative interpretation, which becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation. The legality of the result reached by this process, of course, is quite a different matter. In this case, the only problem is to discover the meaning of certain portions of Maximum Price Regulation No. 188. Our only tools, therefore, are the plain words of the regulation and any relevant interpretations of the Administrator.

Bowles v. Seminole Rock & Sand Co., 325 U.S.  410, 413-414 (1945)

In Samirah v. Holder, 627 F.3d 652, 659 (7th Cir. 2010), the Seventh Circuit distinguished other Federal Register text in a regulatory announcement from the regulation itself. The following passage from the decision is worth noting:

The government’s argument is based rather desperately on a footnote in a request for comment on a proposed rule. Eligibility of Arriving Aliens in Removal Proceedings, 71 Fed.Reg. 27,585-01, 27,586 n. 1 (May 12, 2006). The footnote states that “`advance parole’ is the determination of an appropriate DHS officer that DHS should agree to the exercise of the parole authority under Section 212(d)(5)(A) of the Act before the alien’s actual arrival at a port-of-entry. The actual decision to parole, however, is made at the port-of-entry. Since any grant of parole may be revoked, 8 C.F.R. § 212.5(e), a decision authorizing advance parole does not preclude denying parole when the alien actually arrives at a port-of-entry.” A request for comments is not a regulation; the request to which the footnote was appended was only peripherally concerned with parole (the aim of the proposed rule was to resolve a circuit split over whether an immigrant placed in removal proceedings could apply for adjustment of status); and the footnote is inconsistent with the parole regulation, which states that “when parole is authorized for an alien who will travel to the United States without a visa, the alien shall be issued Form I-512,” 8 C.F.R. § 212.5(f)— the advance-parole travel document.”

 Samirah v. Holder, 627 F.3d at 659 (emphasis added).

The EAD may be renewed on an annual basis if such compelling circumstances continue to be met, even if it is a different sort of compelling circumstance from the initial, or if the beneficiary’s priority date is within one year of the official cut-off date.

How will this work? The job offer supporting the I-140 petition must still be valid. In other words, there is no legal basis under the final rule to port to another job on a standalone I-140 petition. If the employer withdraws the job offer supporting the I-140 petition, the worker could have another employer offer a position, and sponsor the worker through a new labor certification and I-140 petition. The priority date from the old I-140 petition can be recaptured.

Unless the worker is maintaining a valid nonimmigrant status (or can seek the exemption under either INA 245(i) or 245(k)), he or she will not be able adjust status in the United States and would need to process the immigrant visa at an overseas US consulate. The worker’s stay under a compelling circumstances EAD will be considered lawful presence, and will not trigger the 3 or 10 year bars upon departure. Alternatively, the worker can leave and return to the United States in a nonimmigrant status such as an H-1B, and then file for adjustment of status here. It is unfortunate that the rule does not provide for routine travel through advance parole while on a compelling circumstances EAD. The applicant will need to show urgent humanitarian reasons or a significant public benefit in order to seek advance parole.  A person who returns to the United States under advance parole will not be able to adjust status under INA 245(k) as this provision requires a lawful admission in order to adjust status. A person on advance parole is considered paroled and not lawfully admitted into the United States.

Although the centerpiece proposal is disappointing as the basis for EAD need not have been cabined by compelling circumstances, there are some bright spots in the rule. I-140 petitions that have been approved for at least 180 days would not be subject to automatic revocation due to a business closure or withdrawal by the employer. DHS has invoked its discretion under INA 205 to retain an I-140 even if an employer withdraws it or the business closes. This assurance would allow workers who have pending I-485 applications for 180 days or more to safely exercise job portability under INA 204(j), although this dispensation is not possible if USCIS revokes the I-140 based on a prior error. Even those without pending I-485 applications could take advantage of this provision to obtain H-1B extensions beyond six years under the American Competitiveness in the 21stCentury Act (AC 21). They would also be able to keep their priority dates if a new employer files another I-140 petition. The ability to retain the original priority date is crucial for those in the EB queues, as they do not lose their place even if they move jobs and again get sponsored for green cards through new employers.

The proposed rule provides key grace periods to nonimmigrant visa holders. It provides for a 10 day grace period at the start and end of the validity period, and  would also allow workers whose jobs are terminated a grace period of 60 days if they are holding E-1, E-2, E-3, H-1B, H-1B1, L-1 or TN status. The 60 day grace period is indeed a salutary feature. Up until now, whenever a worker in nonimmigrant status got terminated, they were immediately rendered to be in violation of status. There was also no grace period to depart the United States. So, if a worker got terminated on a Friday, and did not depart on the same day, but only booked the flight home on Sunday, this individual would need to disclose on a future visa application, for all times, that s/he had violated status. Derivative family members, whose fortunes are attached to the principal’s, would also be rendered out of status upon the principal falling out status. Thus, the 60 day grace period not only gives the worker more time to leave the United States, but it also provides a window of opportunity to find another employer who can file an extension or change of status within the 60 day period. Similarly, the worker could also potentially change to some other status on his or her own, such as to F-1, after enrolling in a school.

On a related note, the final rule also provides whistleblowers who report H-1B violations with protection from retaliation. Evidence of such retaliation may be presented when submitting an extension or change of status application, which would be considered as an “extraordinary circumstance” under 8 CFR 214.1(c)(4) and 8 CFR 248.1(b) when considering granting a late filing.

There will also be automatic extensions of an EAD for 180 days if filed on the same basis as the initial EAD, but will take away the mandatory processing time for an EAD within 90 days. The lack of a 90 day mandatory processing timeframe may result in delays of the issuance of the initial EAD.

Another noteworthy feature is the ability of nonprofit organizations affiliated to universities to seek H-1B cap exemption. Till now, the USCIS has insisted on an affiliation based on shared ownership or control by the same board or federation, or where the nonprofit is attached to the university as a member, branch, cooperative or subsidiary. Under the new rule, it can also be demonstrated that the “nonprofit entity has entered into a formal written affiliation agreement with an institution of higher education that establishes an active working relationship between the nonprofit entity ad the institution of higher education for the purposes of research or education, and a fundamental activity of the nonprofit entity is to directly contribute to the research or education mission of the institution of higher education.” By way of example, if the nonprofit entity enters into an agreement to house students of the university as interns, it will now be possible for this nonprofit entity to show that it is affiliated to the university, and thus seek H-1B cap exemption status.

We had written a series of blogs when the proposed rule was published, such as here, here, and here.  In one blog we were concerned that beneficiaries of  I-140 petitions might not receive notice when USCIS revokes their I-140 petition. The USCIS has the authority to revoke the I-140, for example, when the “petition approval was in error” pursuant to 8 CFR 204.5(e)(2)(iv), and so should no longer confer a priority date.  USCIS would look to the I-140 petitioner for further information, even though that petitioner might lack any interest in providing it. A hostile petitioner who would have wished to withdraw a petition, or a petitioner which had innocently gone out of business, could give rise to a revocation by failing to respond to notice from USCIS, and in so doing undermine the exercise of the beneficiary’s ability to exercise §204(j) portability. This is not merely a theoretical concern. A recent precedential opinion of the U.S. Court of Appeals for the Second Circuit, Mantena v. Johnson, 809 F.3d 721 (2d Cir. 2015) and a host of other decisions require notification to be provided to either the I-140 beneficiary or the new employer. In the preamble to the final rule, the DHS acknowledges that several commenters raised this issue, but stated that it is unable to address these concerns in the final rule because they are outside the scope of this rulemaking, although DHS is considering separate administrative action outside the final rule to address these concerns. In the absence of a rule requiring notification to the beneficiary, those affected by revocations due to lack of notice should continue to invoke precedents such as Mantena v. Johnson when challenging revocations.

The rule also confirms the ability of the beneficiary of a labor certification that was filed 365 days prior to the end of the sixth year under section 106(a) of the American Competitiveness in the 21st Century Act (AC 21) to seek a one year H-1B extension beyond the sixth year. The rule also confirms the ability of the beneficiary of an approved I-140 petition to seek a three year extension beyond the sixth year if the priority date has not become current. What is new is that the extensions under both sections 106(a) and 104(c) of AC 21 cannot be sought if the beneficiary fails to file for adjustment of status or apply for an immigrant visa within 1 year upon the visa becoming available, i.e, when the priority date becomes current with respect to the final action date in the visa bulletin. In the event that the 1 year period is interrupted by the unavailability of visas, a new 1 year period shall start to run when an immigrant visa again becomes immediately available. USCIS may excuse a failure to file if the alien establishes that the failure to apply was due to circumstances beyond his or her control. Now here lies the problem. If the beneficiary is using an old I-140 petition of a prior employer for an AC 21 H-1B extension with a new employer, and the priority date on that old I-140 petition becomes current, the beneficiary must apply for adjustment of status within one year of visa availability. If the I-140 petition is no longer being supported by the job offer, and was being used to only seek an AC 21 extension, the beneficiary must have the new employer file a new labor certification and I-140, and recapture the old priority date. This process may take over a year. It is hoped that the USCIS exercises its discretion favorably in excusing the failure to file within 1 year when the beneficiary is in the process of having a new labor certification and I-140 processed on his or her behalf.

On a related note, the final rule shot down suggestions, as provided in our blog, that if there were two H-1B spouses, and only one spouse was the beneficiary of a labor certification or an I-140 petition, then both spouses can obtain AC 21 extensions as there is clearly a legal basis. The other spouse would have to now change to H-4 status, and separately apply for an EAD as an H-4 spouse, which will result in delays.

The rule also confirms the ability of an I-485 adjustment of status applicant to be able to port to a same or similar job if the I-485 has been pending for 180 days or more, but it now for the first time requires the applicant to complete Form I-485 Supplement J, with supporting material and credible documentary evidence to demonstrate that either the employment offer by the petitioning employer is continuing or “the applicant has a new offer of employment from the petitioning employer or a different employer, or a new offer based on self-employment in the same or similar occupational classification as the employment offered under the qualifying petition.” Interesting, the rule confirms what was previously confirmed in a 2005 USCIS memo by William Yates, but never completely followed, is the ability of an adjustment applicant to even port off an unapproved I-140. Of course the petition must be ultimately approved, but the rule states that it can be approved without regard to establishing the original employer’s continuing ability to pay after filing and that the I-140 petition was approvable at the time of filing. In defining same or similar occupation, the rule says it “means an occupation that resembles in every relevant respect the occupation for which the underlying employment-based immigrant visa petition was approved. The term “similar occupational classification” means an occupation that shares essential qualities or has a marked resemblance or likeness with the occupation for which the underlying employment-based immigrant visa petition was approved.” The rule broadly defines “same or similar occupation” without regard to similarities in SOC codes that was indicated in a USCIS Memo on Portability, which again would provide flexibility for a backlogged beneficiary to easily port to a new job. One should argue that a promulgated rule takes precedence over a policy memo, which insists on determining same or similar through the SOC codes of the old and the new job.

The final rule is not perfect, but does provide several benefits to high skilled workers. It would have been preferable if EADs could have been issued to beneficiaries of I-140 petitions without demonstrating compelling circumstances. Until Congress acts, there can be other administrative reforms, as we commented,  such as moving the filing dates in the visa bulletin much ahead of the final action dates so that more beneficiaries of approved I-140 petitions can file I-485 adjustment of status applications. Once an I-485 is filed, one can exercise job portability under INA 204(j) and also obtain an EAD and travel benefits. Life as a pending adjustment of status applicant is preferable to life on a compelling circumstance EAD. The rule will also take effect on January 17, 2016, three days ahead of the inauguration of President Trump. Although Trump as a candidate promised to do away with regulations from the Obama administration, it will be difficult for the new administration to repeal this rule as it applies only to immigrant workers who are already here and in the pipeline for the green card. They will anyway get the green card, and have been in the United States legally. The United States must be an attractive destination for high skilled foreign workers. Our immigration system does not meet this objective as workers from countries like India and China have to wait decades for the green card.   Even if the rule survives the Trump administration, much more will need to be done to alleviate the backlogs for skilled immigrant workers who have contributed so much to the United States.