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U.S. Citizenship and Immigration Services (USCIS) has recently resumed employer worksite visits that were put on hold because of COVID-19 and social distancing precautions. This may pose challenges for USCIS and your company, as much of the workforce is still working from home or telecommuting from outside the office. That means employees should be prepared if immigration authorities knock on the front door of their residence.
A home visit from USCIS may seem unusual and alarming to employers and employees alike, but this is not a new practice for the agency—in the family-based immigration context, USCIS officers visit individuals at their homes as a matter of course to confirm the information listed on their petition or application.
Now is a great time for companies to assess their administrative site visit policies and ensure that employees who may be visited at home by an immigration officer understand what to do, whom to contact and what questions they may be asked.
Employers are usually given notice of a verification check—in the past by letter, but recently via email—although the agency has the authority to show up at a work location unannounced to speak with employees, such as the HR or company representative and the foreign national employee who are named in an immigration petition. Immigration verifications are performed by the Fraud Detection and National Security (FDNS) unit of USCIS, and any employee receiving an officer at their home or worksite should promptly ask for a photo ID and a business card to confirm the officer is in fact from USCIS. For prescheduled or unannounced visits, the company is allowed (and recommended) to have an immigration attorney present.
Employees should know beforehand whom to call in the event of a site visit. During the visit, the FDNS officer may ask HR and immigration managers about its general business and its H-1B program, such as the number of H-1B employees and whether employees are sponsored for green cards, and ask about the individual H-1B employee, such as his or her job duties, work location and date of hire. Officers may also question the H-1B employee directly about his or her job, tenure at the company, immigration or visa status before obtaining an H-1B visa, education and work experience, and request documentation such as recent pay stubs, driver’s license and employee badge. More recently, we have seen FDNS officers question the employee’s work-from-home address, length of time the employee has been working from home, and other aspects of the employee’s telework. Finally, FDNS officers may ask to contact the employee’s direct manager separately to confirm the employee’s information.
Enforcement against employers who violate immigration rules has been a priority of the agency in recent years and the trend is expected to continue. In 2018, USCIS beefed up its FDNS unit and began hiring new officers and amplifying targeted site visits with the aim of doubling the number of worksite visits to 20,000 per year and increasing that number every year. The agency has also increased its information sharing with other agencies, allowing USCIS to access information contained in filings with the Labor Department, such as the labor condition application that companies must file to sponsor an H-1B worker.
It is important that companies review and update their policies and procedures for responding to a USCIS site visit or verification and that employees who are working at home understand the protocols. Although COVID-19 continues to keep most companies’ offices closed or at limited capacity, the pandemic is not preventing USCIS from restarting its site visit program—even when the “worksite” is an employee’s kitchen table or spare bedroom.
Kelli Duehning is a Partner and Michael Sela is a Senior Associate in the San Francisco office of Berry Appleman & Leiden LLP.
This article was originally published in the California Business Journal.
The information contained here is meant to be informational, and while BAL has made every effort to ensure the accuracy of the information, it is not promised or guaranteed to be complete. Readers of this information should not act upon any information contained on this alert/blog without seeking professional counsel. This alert does not constitute legal advice or create an attorney-client relationship. Any reference to prior results, does not imply or guarantee similar future outcomes.
Companies wrestling with the economic effects of COVID-19 are facing difficult choices regarding furloughs, layoffs and reductions in employee pay and hours. Employers should carefully consider all H-1B requirements to ensure they remain in compliance with regulations and to help minimize negative consequences for their H-1B employees’ immigration status.
H-1B employers are obligated to pay the “required wage” for H-1B employees for the duration of their authorized employment. The required wage means either the “prevailing wage” for the occupational classification in the area of employment or the “actual wage” the employer pays to similar employees—whichever is greater. A company that reduces an H-1B employee’s pay cannot generally reduce it below the required wage, unless the employer completes a “bona fide” termination of the H-1B employee.
Employers who terminate H-1B employees before the end of their period of authorized employment must fulfill certain legal requirements for it to be considered “bona fide.” The employer must notify both the employee and U.S. Citizenship and Immigration Services of the termination so that the H-1B petition will be withdrawn, and offer to pay the reasonable costs of the employee’s return transportation abroad. A company that does not carry out a bona fide termination may be liable for back wages and payment for the employee’s return transportation.
Companies seeking to reduce the hours of H-1B employees should be mindful of regulations that prevent employers from “benching” H-1B employees during times of slow production. Under these regulations, employers must continue to pay H-1B employees the required wage if their nonproductive status is related to a decision by the employer. This includes the lack of assigned work or waiting for a new project. There are limited circumstances where an employer need not pay the required wage because of conditions that are unrelated to employment, such as an employee’s voluntary request for leave or incapacitation.
In general, full-time H-1B employees must be paid the full-time required wage even if their number of productive hours drops below full-time; part-time workers must be paid for the number of hours stated on the H-1B petition. If the H-1B petition lists a range of hours for a part-time worker, the employer must pay the required wage for the average number of hours normally worked by the worker (but not below the minimum hours listed on the H-1B petition).
Employers may also want to consider how the timing of terminations may affect an H-1B employee’s immigration status and ability to remain in the country. H-1B employees who are terminated may have a grace period of up to 60 days for a new employer to file an H-1B petition on their behalf or to file for change of status to another nonimmigrant category, otherwise they will fall out of status. Foreign nationals who fall out of status may begin to accrue unlawful presence, which can prevent them from returning to the U.S.
Terminations may also impact a company’s recruitment, green card sponsorship and talent retention down the road. This includes the costs of losing global talent after having invested in an H-1B process that has become increasingly challenging. Employers pursuing terminations and layoffs should weigh the numerous immigration considerations and consult with counsel to make sure that they are meeting all compliance obligations and protecting their employees and the company’s long-term interests.
BAL has formed a COVID-19 task force to help clients navigate compliance and immigration strategies during this time.
Steven Plastrik is a Senior Associate in the Washington, D.C., office of Berry Appleman & Leiden LLP.
As employers implement social distancing in the workplace, work-from-home policies have raised questions about how companies can meet compliance requirements for H-1B employees, in particular how changes to an employee’s work location affects Labor Condition Application (LCA) requirements.
It was hoped that the Department of Labor would provide temporary measures allowing flexibility in LCA compliance for employers who are operating remotely during the COVID-19 crisis. But the agency’s latest guidance on April 9 not only fails to offer any new flexibility to current rules—its wording may create more confusion about employer compliance obligations.
In general, when an H-1B worker changes job sites to a new location outside the normal commuting distance, the employer must obtain a new LCA and file an amended H-1B petition. Under the “short-term placement” provision, employers may be eligible to place an H-1B worker at a new worksite outside the area of intended employment for up to 30 days per year, and in some cases 60 days, without obtaining a new LCA.
The DOL guidance may lead employers to misinterpret the rules, as it makes no mention of some key restrictions on the short-term placement option under the regulations. Companies may inaccurately assume that they do not need to obtain a new LCA for H-1B employees working from home and later be found to have violated their LCA obligations. Notably, the short-term placement rules do not apply to new worksites in an area of employment where the employer already has a certified LCA for the job classification. They also do not apply to initial H-1B placements. Since companies commonly employ more than one H-1B employee in the same area of employment, most H-1B employers will not be able to take advantage of the short-term placement provision during the COVID-19 national emergency. Additionally, employers whose new H-1B hires were unable to start work at the intended location because of social distancing policies would also not be able to avail themselves of the short-term placement rules.
Given the risks of noncompliance in these unusual times and the heightened enforcement environment in recent years that is likely to resume after the COVID-19 emergency, companies are encouraged to conduct a careful review of their H-1B employees’ place of employment, consult with counsel, and take steps to ensure that they are in compliance with all LCA conditions and requirements.
Eileen Lohmann is a Senior Associate in the Washington, D.C. office of Berry Appleman & Leiden LLP.
One of the government’s recent attacks on business immigration is the whittling away of the H-1B status validity period for certain employees. When an H-1B worker is changing job locations, and therefore requires an amended petition to be filed, U.S. Citizenship and Immigration Services is taking that opportunity to shorten the worker’s H-1B status—even where the worker already holds an approved petition for a longer period.
This change in longstanding policy is especially affecting companies whose foreign national employees often move around the country from one project to the next.
H-1B workers are eligible for a maximum six years in H-1B status (with some exceptions), which is typically granted in two three-year increments. However, USCIS has recently taken the position that H-1B workers are no longer eligible for their current duration of H-1B stay when they intend to provide services to a third-party for a shorter period of time.
When an H-1B worker needs to change work locations, the petitioning company must first file an H-1B amendment, reflecting the worker’s new location. When the change in work site is pursuant to a contract between the petitioner and the petitioner’s client (a third party), the contract (or “statement of work”) is typically submitted as supporting evidence with the H-1B filing. If the contract indicates that the work assignment is shorter than the worker’s current H-1B status, USCIS is now only approving the status until the contract’s end date.
These shortened validity periods have created new challenges with some odd results. By the time USCIS approves the H-1B petition and notifies the petitioner of the approval, the worker’s H-1B status is typically soon to expire within months or even weeks. There have also been instances where the H-1B worker’s status had already expired by the time the petitioner received the approval notice.
As a result of this trend, companies are bearing increased costs in legal and government filing fees because they must now file extensions of stay requests for their employees more frequently. In addition to financial costs, companies are more at risk of losing talent, either to a competitor whose business model is less reliant on the worker’s immigration status or because the employee must leave the country when his or her status expires earlier than anticipated.
Now more than ever, foreign national employees are on edge about their immigration status, and companies are increasingly going to the courts to resolve these issues. A lawsuit filed in 2018 that challenges USCIS for shortening the normal three-year validity period of H-1B status has now reached a federal appeals court. While the legal case may provide relief in the long-term, in the meantime, companies are encouraged to work with their BAL professional to consider strategies to overcome shortened H-1B approvals.
Melissa Salvador is an Associate Attorney in the Dallas, Tex. office of Berry Appleman & Leiden LLP.
Once again—for the seventh straight year—the H-1B quota was reached in five days, triggering U.S. Citizenship and Immigration Services to embark on what has become an annual ritual: the random selection of petitions via lottery to fill the Congressionally mandated cap of 65,000 H-1B visas (plus an additional 20,000 for master’s degree candidates). This year, 201,011 petitions were filed, exceeding the totals in the past two years. The odds of being selected remain well below 50 percent, leaving roughly 100,000 eager, educated, innovative workers each year to find jobs elsewhere and contribute their talents in countries that have more efficient and welcoming immigration policies.
What could break this annual cycle of events that costs U.S. business considerable lost investment in time, money and talent-hunting? Congress could modernize our immigration laws so that visa issuance correlates with economic need.
Coinciding with the start of H-1B cap filing season on April 1, former Senator Orrin Hatch, with the support of some of the largest tech and other companies, released a report1 urging Congress to raise the caps on H-1B visas and provide other incentives to retain foreign graduates of U.S. universities, including a fast track to citizenship without needing to first obtain temporary H-1B status.
The H-1B system is long overdue for an adjustment. The cap of 65,000 visas was set when the H-1B category was established nearly 30 years ago, in 1990. Think about it. Before the Internet. Before the global economy. Before The Simpsons. Today’s tech industry that relies on H-1B workers was in its infancy in 1990. Since the H-1B was introduced, U.S. GDP has doubled, per capita GDP has risen 67 percent, and the number of businesses in the U.S. has increased by at least 28 percent.
There is precedence for increasing the number of visas during periods of strong economic growth. In 1999 and 2000, Congress raised the ceiling on H-1B visas to 115,000 to accommodate the demand for high-skilled workers, and from 2001 through 2003 Congress temporarily tripled the cap to 195,000 to meet labor needs resulting from an economic boom that was largely fueled by the tech industry. In 2004, however, the quota reverted to 65,000 and an additional 20,000 visas were added for H-1B candidates holding master’s degrees or higher from U.S. universities. For the last 15 years, these caps have remained unchanged.
Hatch, who as a senator repeatedly but unsuccessfully sponsored bipartisan legislation to raise the H-1B caps, asserts in the introduction to the report that choosing between more H-1B workers and protecting American workers is a “false choice” because the two are linked. “We must continue to attract overseas talent to sustain the very innovation that has made our nation the most prosperous in the world,” he says. Today, about 7.5 million jobs remain unfilled and 83 percent of U.S. companies report difficulty in filling open positions, while H-1B holders and U.S. employers, increasingly frustrated by the system, are looking to set up shop in other countries. The report calls for doubling the H-1B cap and opening up other routes for high-skilled workers to relieve chronic oversubscription of the H-1B program.
It’s time to modernize our system. In fact, it’s seven years overdue. The current business environment—economic growth, low unemployment, labor shortages, and intense competition for global talent—provides a perfect recipe for expanding the pool of high-skilled workers available to U.S. businesses. The only ingredient missing is political will.
Delya Ghosh is a Partner in the San Francisco office of Berry Appleman & Leiden LLP.
1 “Barriers to Recruiting and Retaining Global Talent in the U.S.,” Orrin G. Hatch Foundation and FWD.us, April 1, 2019, https://36shgf3jsufe2xojr925ehv6-wpengine.netdna-ssl.com/wp-content/uploads/2019/03/19-03-29-high-skilled-report.pdf
With another busy H-1B cap filing season completed, U.S. companies are reminded that current policies toward high-skilled immigration remain both challenging and unpredictable. Recent changes this cap season continue to demonstrate a hard line toward the H-1B visa program. Yet, in recent months there has been talk of a possible softening of the administration’s position on high-skilled immigration.
President Trump and his advisors have prompted the speculation by sending mixed messages, frequently arguing that abuse of the H-1B program and use of foreign workers undercut American jobs, but more recently suggesting that the economy demands more skilled labor. During the State of the Union address, Trump said that he wanted legal immigrants to come to the U.S. “in the largest numbers ever.” Asked the next day to clarify this statement, he said that American companies moving production back to the U.S. will need to fill those jobs. Moreover, during a tour of the southern border in January to promote funding for additional border wall construction, Trump tweeted that reforms were in the works that would bring “simplicity and certainty” to H-1B workers and he also suggested expanded paths to citizenship. Furthermore, media reports following these comments have indicated1 that Trump’s senior advisor and son-in-law, Jared Kushner, is spearheading talks with businesses aimed at reforming corporate immigration and possibly increasing the number of foreign workers.
On April 5, at the end of the first week of filing, H-1B petitions once again exceeded the caps—for the seventh year in a row. At a time when the need for the H-1B cap to be raised is more apparent than ever, is an era of more business-friendly immigration policy about to begin? While businesses certainly hope this is the case, let’s look at the record.
In the past two years, policy changes have made the H-1B category more cumbersome and less predictable. Since January alone, U.S. Citizenship and Immigration Services pushed through a regulation that alters the H-1B cap selection process, introduced new biometrics procedures for H-1B dependents, suspended premium processing for many cap cases until June or later, and unveiled a data hub that will put employers’ use of H-1B visas within public purview. Other changes include tightening standards for H-1B “specialty occupation” eligibility, increasing anti-fraud investigations of H-1B employers, sharing information among government agencies about H-1B employers, expanding adjudicators’ discretion to deny petitions outright without first requesting additional evidence, raising the burden of proof for nonimmigrants (including H-1B workers) who seek to extend their visas, and requiring additional documentation for H-1B third-party placements.
The result of these policies is in the numbers. Approval rates declined significantly for H-1B visas, according to the most recent statistics by USCIS.2 H-1B approvals, which exceeded 95% in 2015, fell to 84.5% in 2018 and further sank to 75% in the first quarter of fiscal year 2019. The number of requests for evidence, issued in less than 25% of H-1B cases in 2015, rose to 38% in 2018 and 60% in the first quarter of fiscal 2019. Approvals of H-1B cases that were subject to RFEs also dropped more than 20 percentage points, from an 83.2% approval rate in fiscal 2015 to 62.3% in fiscal 2018.
One closely watched litmus test of the administration’s position on high-skilled immigration is the “H-4 EAD rule,” which allows certain H-4 spouses of H-1B workers to obtain employment authorization to work legally in the U.S. For some time, the Department of Homeland Security has indicated that it plans to rescind this Obama-era rule but has repeatedly delayed issuing a new regulation. Immigration observers have said that if the administration intends to change policy direction, it might rethink rescinding this popular regulation, which has benefitted about 100,000 individuals, mostly college-educated women who are spouses of high-skilled workers from India. In late February, however, the agency signaled that it has no intention of changing course, sending the proposal to the Office of Management and Budget for review – the last step before a proposed regulation is officially published. Then, on April 1, DHS confirmed in a court filing that a regulation to remove H-4 spouses from those eligible for employment authorization is “expected to shortly be issued.” A rescission rule is imminent.
And now, in an apparent effort to further the administration’s restrictive agenda, a shake-up in the leadership ranks at DHS is underway. Vowing to take the agency in a “tougher direction,” Trump last week withdrew the nomination of Ronald Vitiello for the role of director of Immigration and Customs Enforcement. (Vitiello had been serving as acting director.) Then, over the weekend, DHS Secretary Kirstjen Nielsen resigned. The administration is reportedly considering the removal of other key DHS leaders, including Lee Francis Cissna, director of USCIS.
What should U.S. companies make of recent statements that conflict with the administration’s track record? While Trump and his advisors may be opening up a new debate and consulting U.S. companies in the decision-making process, there is currently no evidence that more welcoming policies are on the way. The policies of the past two years have purposefully targeted high-skilled immigrants and the employers who need them. Actions speak louder than words, so until the administration takes concrete steps in a new direction, U.S. companies should expect more of the same.
Susan Wehrer is a Partner in the Walnut Creek office of Berry Appleman & Leiden LLP.
1 “Jared Kushner privately working on reshaping legal immigration,” McClatchy, Feb. 20, 2019,https://www.mcclatchydc.com/news/politics-government/white-house/article226462025.html 2 Immigration and Citizenship Data, U.S. Citizenship and Immigration Services, https://www.uscis.gov/tools/reports-studies/immigration-forms-data