The Visa Bulletin is released monthly by the Department of State and is used to determine when a sponsored foreign national can submit the final step of the green card process. The complete visa bulletin can be found here.

Below is a summary of the July Visa Bulletin, including Final Action Dates and changes from the previous month.

  • China: After four months of non-activity, EB-1 leaps forward more than ten weeks to May 8, 2017; EB-2 advances three months to November 1, 2016; and EB-3 jumps ahead three and a half months to January 1, 2016
  • India: EB-1 freezes at January 1, 2015; EB-2 creeps forward five days to April 24, 2009; and EB-3 remains stalled at July 1, 2009
  • Philippines: EB-1 freezes at April 22, 2018; EB-2 remains current; and EB-3 becomes current for the first time since December 2004
  • All Other Countries: EB-1 stalls at April 22, 2018; EB-2 and EB-3 remain current

NOTE 1:     The July Visa Bulletin includes a note warning of little to no forward movement for all EB-1 categories in the coming months, with likely retrogression in September.

NOTE 2:     USCIS will not accept I-485 applications in July based on the Department of State’s Dates for Filing chart. Applicants must use the Final Action Dates chart.

With H-1B Cap premium processing winding down, employers will soon start to get back petitions that were not selected in the lottery. Employees who have other statuses, such as F-1 OPT or L-1, can just keep working and their employers can try again next year. For others, however, if the FY2020 cap was their only option until FY2021, employers may need to make other plans. Before you part ways with a stellar nonimmigrant employee, give a thought to global options.

Return Home: Having your employee work remotely from their home country is the easiest option from an immigration perspective. While this may have labor law, digital security, and tax implications for US employers, an employee who is living in their country of citizenship can work for any employer, anywhere in the world, without the need for sponsorship or immigration processes. This may not be a viable long-term solution, given time zones or other considerations, but it can be a short-term tactic while pursuing other alternatives in the US or elsewhere in the world.

Work in Other Countries: Companies that wish to transfer employees outside the US have some great options, including the following:

 Canada: Our northern neighbor is attractive for several reasons. In Canada, employees can work in the same time zones as the US. In addition, companies with Canadian branches can transfer current employees to Canada through the “Intra-Company Transfer Work Permit.” Similar to the US L-1 visa, the ICT permit requires that the worker have at least one year of employment with the sending company, as well as specialized knowledge or managerial duties.

Mexico: Heading south of the border can also be a good option for employees who can be hosted by a Mexican company while remaining on the US payroll because Mexico has a relatively simple “Temporary Resident Process” for assignees who are paid outside of Mexico.

United Kingdom: Ideal for EU citizens, the UK is also an option for citizens of non-EU countries who have been with a US employer for a year and can be assigned to a UK branch. Unlike the US L-1B visa or the Canadian ICT permit, the UK does not require that an employee have specialized knowledge.

Depending on the company and employee, Ireland, the Netherlands or Singapore may be other viable alternatives.

Act Quickly: Immigration processes outside the US usually take at least 6 to 12 weeks. While this is faster than many US processes, it still takes time. We encourage employers to act quickly in considering alternatives, and we will be happy to advise on individual situations.

Not ready to send your employee overseas? Our next article will cover US alternatives to the H‑1B.

Applicants for US visitor, student, and work-related nonimmigrant visas, as well as family-based and employment-based immigrant visas (“green cards”), now have to provide information about the social media platforms used over the preceding 5-year period.  The updated visa application forms seek information about the most popular social media platforms, including Facebook, Twitter, Pinterest, and YouTube.  Applicants also have the opportunity to provide information about social media platforms not listed in the drop-down menus.  For each platform, applicants must provide all of their usernames or handles, email addresses, and phone numbers used during the 5-year period.  Passwords to any of the accounts are not required.  Diplomats are exempt from this requirement.

While asking for social media information from visa applicants is relatively new under the current administration, it was limited to applicants identified as those requiring additional scrutiny.  Looking at the countries visited by applicants, among other things, resulted in 65,000 social media screenings per year.  This new blanket requirement will affect over 700,000 immigrant visa applicants and over 14 million nonimmigrant visa applicants each year.  Organizations that promote civil liberties are concerned that this could lead to self-censorship and unfair profiling of applicants.

As with any visa application, lying can result in denial of the application, and can lead to being barred from the United States.  It is important for visa applicants to answer these additional questions truthfully and accurately.

Now that the Fiscal Year 2020 H-1B cap season is over, it is a good time for an internal review and update of public access files (PAFs).

What is a Public Access File?

U.S. employers who sponsor H-1B employees must make certain records available, on request, to government auditors, members of the public, and the H-1B employee.  The PAF must establish that the employer is paying the higher of: (a) the prevailing wage; or (b) the actual wage paid to other employees in similar positions who have similar qualifications.

Why does PAF compliance matter?

Failure to comply with PAF requirements, if discovered by the U.S. Department of Labor (DOL), could cost an H-1B employer millions of dollars in back wages, fines, and other penalties. A little spring cleaning now will protect a business going forward.

What documents must be retained in the PAF?

Each PAF must contain the following materials related to the H-1B application:

  • Actual Wage Memo
  • Summary of Benefits offered to U.S. and H-1B workers
  • Prevailing Wage Documentation for the occupation and geographical area
  • Posting Notices and Certification of Posting
  • LCA, Form ETA 9035
  • LCA Cover Pages, Form ETA 9035CP

In addition, during a PAF audit, DOL may request (a) proof that the H-1B employee received a copy of the certified LCA, and (b) payroll records for the H-1B employee and other employees in the same or substantially same positions at the worksite. These do not need to be in the PAF itself, but may need to be provided on request.

Where should the PAF be stored?

The PAF must be kept at either the employer’s principal U.S. place of business or at the location where the H-1B worker is employed.  Records may also be maintained electronically.  The PAF must be kept separate from other immigration or personnel records maintained by the employer.

How long must PAFs be maintained?

PAF documents must be retained for one year after the last date the H-1B worker was employed under the LCA or from the LCA expiration date, whichever is longer.  PAFs prepared for H-1B applications that are not selected in the H-1B lottery do not need to be retained.

What if an employer fails to comply with PAF requirements?

DOL can audit a company’s PAFs.  Common audit triggers are complaints from current or former H-1B employees or colleagues who have knowledge of the employer’s LCA practices.  DOL can impose various penalties including fines up to $53,969 per violation for willful violations, payment of back wages, and debarment from using the H-1B program.

The risks of audits and related penalties are real.  DOL is keeping its promise to enforce laws governing immigration and it is costing employers.  Just last week, a Michigan employment services company paid more than $1.1 million in back wages for failing to pay required wages, and on February 19, 2019 a Minnesota administrative law judge ordered a company to pay $43,666 in back wages to one H-1B employee for violating the LCA and failing to maintain required records.

The H-1B nonimmigrant visa classification is under constant scrutiny and immigration enforcement activity continues to hit record highs. Employers’ should work with counsel to ensure proper compliance with all aspects of immigration law, including maintenance of PAFs. Failure to do so can be a costly mistake.

Thought the Social Security Administration (SSA) no-match letters were a thing of the past? Check your snail mail. In March, SSA began sending Employer Correction Request Notices – officially called EDCORs – to employers whose payroll records do not match SSA records. SSA has not released official numbers, The New York Times and other media have reported that more than 575,000 employers received EDCORs over the last two months.
Continue Reading Another Name, But Mostly The Same: Social Security No-Match Letters Are Back

The Visa Bulletin is released monthly by the Department of State and is used to determine when a sponsored foreign national can submit the final step of the green card process. The complete visa bulletin can be found here.

Below is a summary of the June Visa Bulletin, including Final Action Dates and changes from the previous month.

  • China: EB-1 remains stalled at February 22, 2017, EB-2 leaps forward nearly three months to August 1, 2016 and EB-3 advances over three weeks to September 15, 2015
  • India: EB-1 falls to January 1, 2015, EB-2 crawls ahead three days to April 19, 2009, and EB-3 freezes at July 1, 2009
  • Philippines: EB-1 moves forward seven weeks April 22, 2018, EB-2 remains current, and EB-3 gallops ahead five months to November 1, 2018
  • All Other Countries: EB-1 marches ahead seven weeks to April 22, 2018, EB-2 and EB-3 remain current

NOTE: USCIS has not yet announced if it will accept I-485 applications in June based on the Department of State’s Dates for Filing chart. In previous months, applicants must use the Final Action Dates chart summarized above.

Starting in May 2019, US Customs and Border Protection (CBP) will issue I-94 numbers with letters in addition to numbers. The new format will include nine numbers, followed by one letter and one number. Current I-94 numbers also have eleven characters, but only numbers. Examples of new I-94 numbers include: 111111111A1; 000000001B2; 123456789C3. I-94s in the current number-only format will remain valid through the listed “Admit Until Date”.

As a reminder, an I-94 record not only documents a foreign national’s current nonimmigrant status, but also governs the amount of time the individual is allowed to remain in the United States in that status. As such, it is extremely important to review and print I-94 record from the CBP website after each admission into the United States. Errors on I-94 records can be corrected if caught early. See our previous blog post for more information.

The Visa Bulletin is released monthly by the Department of State and is used to determine when a sponsored foreign national can submit the final step of the green card process. The complete visa bulletin can be found here.

Below is a summary of the May Visa Bulletin, including Final Action Dates and changes from the previous month.

  • China: EB-1 remains stalled at February 22, 2017, EB-2 advances six weeks to May 15, 2016, and EB-3 moves ahead twenty-one days to August 22, 2015
  • India: EB-1 freezes at February 22, 2017, EB-2 moves forward four days to April 16, 2009, and EB-3 continues to outpace EB-2, creeping ahead nine days to July 1, 2009
  • Philippines: EB-1 moves forward one month to March 1, 2018, EB-2 remains current, and EB-3 leaps ahead three months to June 1, 2018
  • All Other Countries: EB-1 remains backlogged, but continues to slowly advance, moving one month to March 1, 2018, EB-2 and EB-3 remain current

NOTE 1:   The May Visa Bulletin includes a note warning that retrogression in the EB-1 China and EB-1 India categories is possible in the coming months.

NOTE 2:  USCIS will not accept I-485 applications in May based on the Department of State’s Dates for Filing chart. Applicants must use the Final Action Dates chart.

U.S. Citizenship and Immigration Services has just announced that it has completed what is commonly known as the “master’s cap” H-1B lottery.  The agency confirmed, as was widely anticipated, that sufficient petitions were received during the first five business days of April 2019 to satisfy this additional pool of 20,000 H-1B numbers, which are set aside for workers who possess an advanced degree from a U.S. college or university.  As we previously reported, the “regular cap” of 65,000 numbers was also met during the 5-day filing window.

USCIS also just released the total number of H-1B petitions that were received for both lotteries during the FY2020 filing window:  201,011.  That number represents almost a 6 per cent increase over FY2019, when 190,098 total petitions were received.

USCIS typically does not report what portion of the overall volume of petitions are for people with advanced degrees.  However, we anticipate that, this year, the agency will release at least some of those statistics if the change that was implemented this year – reversing the usual lottery order so that more advanced-degree workers would be selected – was successful.  Please watch our blog for updates.

U.S. Citizenship and Immigration Services has reported receiving enough petitions during the first five business days of April 2019 to meet the congressionally mandated 65,000 H-1B regular cap for fiscal year 2020.  USCIS will next determine if it has received enough petitions to meet the 20,000 U.S. advanced degree exemption or “master’s cap.”

This year, for the first time, the agency ran the regular lottery first, with the stated purpose of ensuring that more of the limited annual H-1B numbers went to those with advanced U.S. degrees.  We will provide an update once the agency makes an announcement about the master’s cap lottery.

In the coming weeks, we expect first to receive electronic receipt notices for selected H-1B cap petitions that were filed under USCIS’s premium processing service.  The agency has announced that the 15-day premium processing period will start no later than May 20.  We anticipate that hard-copy I-797 receipt notices for selected petitions that were filed under regular processing will trickle in through June.  As in previous years, we expect to receive rejected petitions – those that were not selected in either the regular or the master’s cap lottery – to begin arriving in early July.