Posts Tagged ‘H-1B Visas’

Saving Grace? The Grace Period Myth for Laid-Off H1B Workers

April 28th, 2012
posted by at 6:40 pm

By Pam Prather

Many employers, H1B holders, and even immigration practitioners talk about a grace period after an H1B employment relationship has ended.

This so-called “10 day rule” is a myth.

A common scenario we hear of is that of an H1B employee who has been laid off – although not that uncommon in this economy. Most people understand that as of that day, the H1B visa-holder is not authorized to work in the U.S., no matter what the I-94 says. Unfortunately, the widespread misconception is that the laid-off foreign national is automatically granted 10 days to find another job, or even just wrap up their affairs.

This is simply not true.

The basis for the false impression is likely the H1B provision that states:

“A beneficiary shall be admitted to the United States for the validity period of thepetition, plus a period of up to 10 days before the validity period begins and 10 daysafter the validity period ends. The beneficiary may not work except during the validity period of the petition.”

This provision often does not apply in the best of circumstances, and certainly does not when an employee is terminated. The USCIS has taken the position that because the foreign national was admitted for the specific purpose of providing services to his/her U.S. employer, once that relationshipis over the H1B employee is no longer in status. Severance pay, unused vacation days, or any other arrangement to ‘stretch’ the employment does not help.

Once the employee is no longer working for the employer, he/she is no longer in valid non-immigrant status unless another application has been filed on their behalf.

Luckily, capturing laid-off professional workers is not the highest priority for the Department of Homeland Security. Often, if the case is presented carefully, the Immigration Service will ‘forgive’ the employee of a short period of invalid status. Again, this is NOT a “10 day rule”, but rather a strategy employed by experience immigration attorneys that is often successful.

Remember, contact a reputable immigration attorney in situations such as this, where there is so much at stake – stay, status, job, home, and even future visits to the United States.

H-1B Amendments: The Times They Are A-Changin’

March 8th, 2012
posted by at 8:06 pm

By Pam Prather

If your time to you

Is worth savin’

Then you better start swimmin’

Or you’ll sink like a stone

For the times they are a-changin’.

Bob Dylan’s lyrics in this song are timeless.

They apply to almost every aspect of our lives, including immigration laws and policy.

The times, they definitely are changing.

Ask any Information Technology (IT) company who places their employees at end-client sites if times have changed and the answer you’ll likely get is, YES.

We have been advising H-1B IT employers for quite some time now that a change of location for their employee cannot be ignored when it comes to their status, the Department of Labor, and the conditions of their employment.  In the past, companies would simply apply for a new Labor Condition Application (LCA) when an employee moved to a new work location.  However, that is not enough.

It is now imperative that any change or addition of work location MUST be reported to the USCIS through an actual H1B Amendment.

EVERY time the employee is moved to a different client, the company needs to notify the USCIS.

With an increase of USCIS site visits, it’s getting more and more important that communication with this federal agency be thorough and timely.

Here is a section (all identifying factors have been changed) of a 10-page USCIS “Notice of Intent to Revoke” an already approved H-1B petition AFTER a USCIS site visit, of which we were recently made aware:

The very nature of your business, locating and placing aliens with computer backgrounds into positions with firms that use computer programmers and/or analysts to complete their projects, is such that multiple employment locations would be expected.

In your filing, LCA Case Number I-200-00000-111111 certified on August 9, 2010 for 123 Main Street, Anytown USA, was submitted. No other work locations were noted on the LCA or in any other evidence in the file.

However, on March 28, 2011, an administrative site visit was performed at the address listed on the petition as the location where the beneficiary would work. Upon review of the work location address at 123 Main Street, Anytown USA, the site inspector discovered that your company did not exist at that location; and the beneficiary was not working at that address.

On July 01, 2011, John Doe, Vice President of ABC Company, sent an email to our office which stated that the beneficiary is scheduled to work on July 10, 2011 at XYZ Company, 789 Side Street, Every City USA.  At the time, Mr. Doe emailed a copy of the LCA I-200-00000-222222 which was certified on June 30, 2011 for 789 Side Street, Every City USA. No other locations were noted on the LCA.

A search of USCIS records indicates that you did not file another petition on behalf of this beneficiary.

As such, the record only contains one valid LCA, LCA Case Number I-200-00000-111111 certified on August 09, 2010 for 123 Main Street, Anytown USA. Since the beneficiary was not found at the location listed on the LCA, and it cannot be determined where the beneficiary is currently working, USCIS has determined that the LCA submitted cannot be considered valid.

So, this employer did the right thing in filing a new Labor Condition Application after his employee was moved to another End Client pursuant to a new contract.  However, the employer did NOT file an H-1B amendment with USCIS.

A new LCA without an official H-1B amendment can no longer satisfy the USCIS.

If an employer does not file the amendment, it risks getting a Notice of Intent to Revoke an already approved H-1B petition, as mentioned above.  Or, its employee can encounter problems when applying for an H-1B visa at a U.S. Consulate Office abroad.

An H-1B amendment (without an H-1B extension request) only requires a USCIS filing fee of $325.  It’s worth the cost, or an employer risks losing the employee and client project.

You should contact an immigration attorney any time your H1B employee’s work conditions change to a degree that might be considered significant.  But certainly contact one if the work location changes.

”The times they are a-changin’.”

 

Applying for an H-1B Visa in Hyderabad: Be Careful or Be Banned!

February 18th, 2012
posted by at 6:56 pm

By Pam Prather


Yet another negative situation has come to light regarding temporary foreign employees working to the US.  It has the potential for professionals from India to be banned from the US for life.

The US Consulate in Hyderabad has started requiring applicants for some H-1B visas to sign an attestation about their work conditions.  This attestation, if erroneous, could expose them to a lifetime ban from the United States.

Applicants who will be working at a third-party client site in the US (usually IT specialists) have been subject to increased scrutiny regarding the employer-employee relationship in the last couple of years. In 2010, the USCIS issued a memo defining the required employer-employee relationship for H-1B visas.  It included a description of how that relationship was to be maintained if an employee was assigned to a third party, or to an off-site client location. In response, USCIS adjudicators started focusing more closely on things like who pays the employee, and who controls or supervises their work.

Now, in Hyderabad, the stakes in applying for an H-1B visa are very high.  If an applicant guesses about certain information and is wrong (or intentionally provides false information, of course), he/she could face a permanent bar from the US.

Not all applicants know and understand the full extent of their work conditions in the US.  What if they provide what they think is the right answer, or what the consular official wants to hear, and turn out to be wrong?  They could be barred forever from the United States, for misrepresentation. Any assumption by the H-1B employee could be the death knell not just for his or her visa, but for their ability to ever visit the US again.

If you have an H-1B visa interview scheduled in Hyderabad, or at any U.S. consulate for that matter, it would be wise to speak with an Immigration Attorney first.

 

No More H-1Bs For Fiscal Year 2012; Now What?

January 20th, 2012
posted by at 3:23 pm

By Pam Prather

The H-1B quota for 2012 (10/1/2011 – 9/30/2012) was met on November 22, 2011.  Although most immigration practitioners knew it was coming, it was still a disappointment to hear this news – particularly because it was given the day AFTER it happened. So, as in years past, we are again messengers of a frustrating policy to U.S. employers eager to issue job offers to foreign nationals.

Fortunately, there are some exemptions to the cap.  These should be kept in mind when strategizing a case, as it means an employer could file even after the quota has been met:

  • Extension applications for persons currently in H-1B status (and, in certain circumstances, for persons who were previously in H-1B status and seek to regain it)
  • New Employer applications for H-1B holders transferring from one employer to another
  • Applications by employers who are institutions of higher education, nonprofit research organizations, or governmental research organizations

If the cap has been met, and a case is not eligible for an exemption, what’s left to do?

In certain circumstances, there are other – some perhaps lesser known – employment visas that should be carefully explored with the employer and the employee:

  • L-1 intracompany transferees, for employees who worked for a related corporate entity abroad
  • TN (under NAFTA) for Canadians and Mexicans
  • E-3 for Australians
  • E-1 and E-2 for treaty-investor or treaty-traders (from certain countries)
  • F-1 for students of higher education who qualify for limited work authorization (and possible STEM OPT extensions)
  • O-1 for persons of extraordinary ability

In addition, there may be work authorization available to employees at certain stages of the “Green Card” process.

Federal law caps the number of new H-1Bs at 65,000 per year. Citizens of Singapore and Chile get 6,800 of those under specific trade agreements, so general availability is actually 58,200. There are an additional 20,000 for those who have achieved a U.S. Master’s (or higher) degree, a ‘gift’ bestowed by Congress in December 2004.

With the American economy slowing down as it has, last year’s quota remained open for 10 months, and this year’s remained open for almost 8 months. In past years, the H-1B quota was exhausted in one day!

Not having this vital program available to employers year-round makes obvious the point that the arbitrary quota is not sufficient to meet U.S. workforce needs.  Congress and the President should increase the quota, or in the alternative, eliminate it altogether.

Although the H-1B is by far the most commonly used temporary, nonimmigrant work visa, there are some other options to consider.  As with all immigration law, however, they are complex.  Remember to consult with a qualified immigration attorney to help you through the labyrinth of each possibility, and to ensure compliance with federal law.