Changes to the H-1B Program

Many of you are probably aware that President Trump is trying to change H-1B regulations on his own, bypassing the normal rulemaking process in Congress.  This move comes now for 2 reasons:  1) Trump administration Executive Orders targeting the H-1B visa have been overturned by many federal court decisions, including the ITServe decision.  The Trump administration is now attempting a new method of attacking the H-1B visa; and, 2) The election is near, and President Trump is trailing in the polls.  He is attacking the H-1B visa as a way to rally his supporters. 

WHAT ARE THE CHANGES?

The Trump administration is attempting to curtail the H-1B visa by issuing two (2) new rules that greatly affect H-1B workers.  These regulations also hit IT consulting companies in a major way.  The 2 new rules are:

1. The Department of Labor (DOL) has changed its wage levels.  Under the law, an employer must pay an H-1B visa holder the higher of the prevailing wage or actual wage paid to similar U.S. workers.  Currently, the DOL determines the prevailing wage by using data from the government’s Occupational Employment Statistics (OES) wage survey and using a mathematical formula to create four levels of wages for each occupation.

Effective October 8, 2020 (immediately after the rule was announced), new mathematical formulas have been applied to the OES wage survey.  The old and new percentiles are as follows:

Wage level	Old mathematical percentile	New mathematical percentile
Level 1	17th percentile	45th percentile
Level 2	34th percentile	62nd percentile
Level 3	50th percentile	78th percentile
Level 4	67th percentile	95th percentile

For any LCAs filed now (if an LCA is already filed, it does not need to be refiled), and any prevailing wages that may be determined as of October 8, 2020, these wages MUST be applied.

As an example of what this looks like, here are the old and new wages for SOC code 15-1132 for the Washington DC metro area:

Old Wages

Area Title: Washington-Arlington-Alexandria, DC-VA-MD-WV

OES/SOC Code:15-1132
OES/SOC Title: Software Developers, Applications
GeoLevel:1
Level 1 Wage:$36.87 hour – $76,690 year
Level 2 Wage:$46.83 hour – $97,406 year
Level 3 Wage:$56.78 hour – $118,102 year
Level 4 Wage:$66.74 hour – $138,819 year

New Wages

Area Title: Washington-Arlington-Alexandria, DC-VA-MD-WV

OES/SOC Code:15-1132
OES/SOC Title: Software Developers, Applications
GeoLevel:1
Level 1 Wage:$55.00 hour – $114,400 year
Level 2 Wage:$68.81 hour – $143,125 year
Level 3 Wage:$82.61 hour – $171,829 year
Level 4 Wage:$96.42 hour – $200,554 year

As you can see, wages have increased drastically.  We have received inquiries on whether it is acceptable to downgrade the employee’s wage level.  Unfortunately, there is a danger in doing that.  The wage levels are defined as follows:

Level I (entry) wage rates are assigned to job offers for beginning level employees who have only a basic understanding of the occupation.  These employees perform routine tasks that require limited, if any, exercise of judgment.  Statements that the job offer is for a research fellow, a worker in training, or an internship are indicators that a Level I wage should be considered.

Level II (qualified) wage rates are assigned to job offers for qualified employees who have attained, either through education or experience, a good understanding of the  occupation.  They perform moderately complex tasks that require limited judgment.

Level III (experienced) wage rates are assigned to job offers for experienced employees who have a sound understanding of the occupation and have attained,  either through education or experience, special skills or knowledge.  They perform tasks that require exercising judgment and may coordinate the activities of other staff.  Words such as ‘lead’ (lead analyst), ‘senior’ (senior programmer), ‘head’ (head nurse), ‘chief’ (crew chief), are indicators that a Level III wage should be considered.

Level IV (fully competent) wage rates are assigned to job offers for competent employees who have sufficient experience in the occupation to plan and conduct work requiring judgment and the independent evaluation, selection, modification, and application of standard procedures and techniques.  Such employees use advanced skills and diversified knowledge to solve unusual and complex problems. They generally have management and/or supervisory responsibilities.

USCIS will look at the years of experience the employee possesses and the responsibilities of the job.  If employers decrease the beneficiary’s wage level to pay a lesser wage under this new scheme, USCIS will most likely RFE/ deny the H-1B petition.  Therefore, right now we do not recommend filing an LCA, if at all possible.  This new rule will be attacked in the courts (this will be addressed further on), and we suggest waiting to see the results before any further LCAs are filed.

• The Department of Homeland Security (DHS) also published regulations amending requirements for H-1B nonimmigrant visa classification on October 8, 2020.  The new policies were issued as interim final rules, meaning they will take effect without first undergoing a public-comment and review process that is customary for such rules. The administration also waived its typical regulatory review process before issuing it to the rule in order to be able to publish it faster.  These rules will go into effect in 60 days, on December 7, 2020, unless they are enjoined by the courts.

Some of the key provisions of the rule are:

Specialty Occupation

• The rule amends the definition of a “specialty occupation” at 8 CFR 214.2(h)(4)(ii) to indicate that there must be a direct relationship between the required degree field(s) and the duties of the position:
  • General degrees in engineering, liberal arts, business, et cetera without further specialization or explanation are not sufficient to meet specialty occupation.
  • In cases where the petitioner lists degrees in multiple “disparate” fields of study as the minimum entry requirement for a position, the petitioner must establish how each field of study is in a specific specialty providing “a body of highly specialized knowledge” directly related to the duties and responsibilities of the particular position.
  • Where a position may allow a range of degrees, and apply multiple bodies of highly specialized knowledge, each of those qualifying degree fields must be directly related to the proffered position.
• Instead of demonstrating that a bachelors’ degree is “normally”, “commonly” or “usually” required, petitioners will have to establish that the bachelor’s degree in a specific specialty or its equivalent is a minimum requirement for entry into the occupation in the United States by showing that the required degree is always:
  • The requirement for the occupation as a whole;
  • The occupational requirement within the relevant industry;
  • The petitioner’s particularized requirement; or
  • Because the position is so specialized, complex, or unique that it is necessarily required to perform the duties of the specific position.

Third-Party Worksites

• The definition of “worksite” is amended (so that it is similar to the DOL definition of “place of employment” at 20 CFR 655.715) as “the physical location where the work is actually performed by the H-1B nonimmigrant.”
• The rule defines “third-party worksite” as “a worksite, other than the beneficiary’s residence in the United States, that is not owned or leased, and not operated, by the petitioner.”
• The rule sets a 1-year maximum validity period for all H-1B petitions in which the beneficiary will be working at a third-party worksite. This applies to all H-1B petitions where any identified worksite is a third-party worksite, not just the primary worksite

Employer-Employee Relationship

• The definition of “United States Employer” is amended by:
  • Striking the word “contractor” from the definition of “United States employer,” although DHS also explains at length that the deletion does not necessarily preclude a contractor from qualifying as a U.S. employer;
  • Inserting the word “company” in the general definition; and
  • Expanding upon the existing requirements by requiring that an employer must engage the beneficiary to work within the United States and have a bona fide, non-speculative job offer for the beneficiary.
• The rule codifies, at 8 CFR 214.2(h)(4)(iv)(C), that at the time of filing, the petitioner must establish that a bona fide job offer exists and that actual work will be available as of the requested start date.
• The rule defines the term “employer-employee relationship” to be the “conventional master-servant relationship as understood by common-law agency doctrine.” It includes a non-exhaustive list of factors to be considered in the totality of the circumstances, essentially restoring the January 2010 Neufeld Memo on employer-employee relationship. However, in addition to taking into account whether employer has “the right to control” the employee’s work as one of the enumerated factors, USCIS will also look at whether the employer actually exercises that right to control.
• Additionally, the petitioner will be required to demonstrate that it can actually take the claimed actions when it comes to these factors.
• The rule requires that petitioners filing third-party worksite petitions must submit evidence such as contracts, work orders, or other similar evidence (such as a detailed letter from an authorized official at the third-party worksite) to establish that the beneficiary will perform services in a specialty occupation and that the petitioner will have an employer-employee relationship with the beneficiary. Such documentation may also be requested by USCIS for any and all H-1B petitions in a case-by-case basis.

Other Provisions

• The rule requires USCIS to issue a brief explanation when an H-1B nonimmigrant petition is approved but USCIS grants an earlier end validity date than requested by the petitioner.
• The rule revises the itinerary requirement at 8 CFR 214.2(h)(2)(i)(B) to specify that this provision will not apply to H-1B petitions. DHS will still apply the itinerary requirements at 8 CFR 214.2(h)(2)(i)(F)(1) to H-1B petitions filed by agents.
• The rule adds provisions regarding H-1B site visits to codify its authority to conduct site visits and describe the scope of inspections:
  • The regulation indicates that the possible scope of an inspection may include the petitioning organization’s headquarters, satellite locations, or the location where the beneficiary works or will work, including third-party worksites, as applicable.
  • The rule also specifies that failure or refusal of the petitioner or a third-party to cooperate with a site visit may be grounds for denial or revocation of any H-1B petition for H-1B workers performing services at the location or locations which are a subject of inspection, including any third-party worksites.

These changes are vast and far-reaching.  If implemented and not enjoined by court order, the IT consulting industry will be the hardest hit. 

LEGAL RESPONSE TO THESE CHANGES

As a preliminary matter, comments to these regulatory changes may be submitted through the Federal eRulemaking Portal: http://www.regulations.gov (DHS Docket No. USCIS-2020-0018).

These changes will be litigated in the federal courts.  We are aware of two (2) pending lawsuits.  The American Immigration Lawyers Association (AILA) is preparing to file a lawsuit against these changes.  Additionally, Wasden Banias Immigration and Litigation (the firm who won the ITServe Alliance case that forced USCIS to rescind the Third-Party Worksite Memo and the Neufeld Memo) and ITServe Alliance are also planning to file a lawsuit that requests an injunction against these changes.  As we learn more about these planned lawsuits, we can advise our clients further.

There are several bases upon which litigation may be filed:

• An interim final rule is less likely to survive a court challenge.  The Administrative Procedure Act (APA) only allows “good cause” exceptions to notice and comment rulemaking. A judge in the D.C. Circuit in 2015 said that such exceptions are construed narrowly and without deference to the agency.  For example, the DOL issued the wage level changes and implemented them without notice.  It will be hard-pressed to argue that this was necessary because public health and welfare are at stake.
• A report issued in August by the Government Accountability Office found that DHS Acting Secretary Chad Wolf was not legally appointed to his position. Several preliminary injunctions have now been issued blocking DHS rule changes.  The lawsuits argued that because Wolf’s appointment was unlawful, any rule changes made by DHS are also unlawful.

We are monitoring the situation closely.  As soon as we learn anything, we will share this information with you and adjust our advice accordingly.

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Downgrading an I-140 from EB-2 to EB-3

As all EB-2 and EB-3 I-140 beneficiaries are aware, there has been a HUGE jump in the Chart B Visa Bulletin for October 2020, particularly in the EB-3 category (January 1, 2015).  With the EB-3 priority date jumping ahead of the EB-2 priority date, many I-140 beneficiaries have elected to “downgrade” their EB-2 I-140s to an EB-3, to take advantage of the availability of concurrent filing for adjustment of status. 

Our office has received many requests to confirm that the downgraded I-140 will be filed as a “new” I-140, so that the EB-2 I-140 will still be available if EB-3 dates retrogress and EB-2 dates jump ahead.  This was the plan until we heard some news from the American Immigration Lawyers Association. 

It appears there is now a bit of controversy among AILA, attorneys, and USCIS adjudicators on how to properly file these – as a new petition or as an amendment.  AILA has been telling attorneys to file these as “new” petitions for years, so that the underlying EB-2 petition also remains valid.  Then if EB-2 dates jump back ahead, the beneficiary could use the EB-2 petition priority date to adjust status.  This has been done for years, and there is justification in the regulations to do it this way.

However, there is a USCIS Memo from 2007, which was added to the Adjudicators Field Manual, that states Officers can only accept an I-140 filing that relies on a previously used PERM if the new petition “amends” the old I-140 petition.  It appears USCIS is now taking this position, after years of taking the “new” petition position.  AILA has reported several denials of downgraded I-140s because they were filed as “new” rather than “amended.”

Because the Adjustments are being filed together with these downgrades, and most likely we will only be allowed this in October 2020, we do not want to run the risk of having the I-140 downgrade denied because USCIS is playing games, and then the adjustment also gets denied.  Therefore, our office has decided to add a blurb in the letter of support that this new I-140 petition is really being filed as a new petition, but the “amended” box is also being checked, just in case. 

The downside of this approach is that if USCIS only accepts the new I-140 as an amendment, the underlying I-140 in the EB-2 category will have to be refiled and amended again to convert back to EB-2, which results in more attorney fees and USCIS filing fees.  However, this is the safest way to go this October.  With filing concurrent adjustments that will be only be allowed to be filed in October, the stakes are too high this month to risk a USCIS denial on a downgraded “new” I-140.  We are hedging our approach this month to prevent the I-485 from being denied.

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Adjustment of Status & Medical Exams

Wow!  What a week for employment-based immigration.  Moreover, what a month it will be.  As all EB2 and EB3 I-140 beneficiaries are aware, there has been a HUGE jump in the Chart B Visa Bulletin, particularly in the EB3 category (January 1, 2015).  With the EB3 priority date jumping ahead of the EB2 priority date, many I-140 beneficiaries have elected to “downgrade” their EB2 I-140s to an EB3, to take advantage of the availability of concurrent filing for adjustment of status.  Given this welcomed news, it is with excitement that our office is busy as ever preparing I-485 Applications for Adjustment of Status as well as I-140 EB2 downgrades. 

Do I need to file the I-693 Medical with my Adjustment of Status Application?

This question always arises in Adjustment of Status context, and I thought this would be a great issue to address this week:  Should I file the Medical I-693 form along with the Adjustment Application?  And if I elect not to, can USCIS reject my 485 Application?

To confirm this answer, I will take you straight to the source—Instructions for Application to Register Permanent Residence or Adjust Status, Page 15, item 10.https://www.uscis.gov/sites/default/files/document/forms/i-485instr-pc.pdf

USCIS states the following:

You are NOT required to submit Form I-693 at the time you file your Adjustment Application, but may do so if you wish. Because of the time-limited validity of Form I-693, you may choose to submit your Form I-693 after you file your Form I-485. You may also submit Form I-693 in person at an interview in a USCIS field office, if an interview is required. By waiting to submit Form I-693, you may avoid having to repeat the immigration medical examination. The Form I-693 must be dated no earlier than 60 days before you filed your underlying application. A properly and timely completed Form I-693 remains valid for two years from the date of the civil surgeon’s signature.

Because an I-693 is only good for two years from the date of the civil surgeon’s signature, many I-693s will expire before the AOS interview.  Remember, interviews are conducted when final action dates are current.  Hence, my advice to many of our clients is to wait on the I-693 until the priority date is closer, or take the I-693 to the interview with you.  Save yourself some money and some needle pricks.

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Delays in Adjudicating and Printing EAD and Green Cards:

We at Hallett McCann Law Group have been hearing plenty of stories from people who have received an I-797 notice that their green card applications or work permit applications had been approved, and months later, they still haven’t received any document or card from USCIS.

If this has happened to you, then you are in a distinguished group of about 115,000 people who are also waiting for their green card or work permit. 

So what’s the story? Why the backlog? 

In January 2017, the Department of Homeland Security (“DHS”) eliminated from the immigration regulations the requirement that the agency adjudicate EAD applications within 90 days of receipt.  From that point forward, our office has witnessed a steady increase in adjudication processing delays and document production delays. 

In June 2020, USCIS ended a contract it had with an outside company (to print EAD employment authorization document) cards and green cards. USCIS’s plan was to hire federal employees to print the cards in-house, but that plan has stalled according to USCIS – citing their budget shortfall. 

As a result, a lawsuit was filed in federal court in Ohio during the summer months.  This lawsuit was filed on behalf of an Indian family who had been waiting months to receive cards for already approved petitions. Likewise, this lawsuit was filed as a proposed class action, which means that, if approved, thousands of other people in similar positions could join the lawsuit.  

In response to this litigation, USCIS reluctantly agreed to temporarily accept I-797 approval notices as proof of work authorization, as they work their way through the backlog.  On Wednesday, September 23, 2020, USCIS published the following guidelines for working in accordance with an I-797 approval notice and establishing employment authorization:

Form I-9 Announcements

Employment Authorization Document (EAD) Delays Due to COVID-19 Wednesday, Sept. 23, 2020 Issuance of certain Employment Authorization Documents (Form I-766, EADs) may be delayed due to the COVID-19 global pandemic. To complete Form I-9, new employees who are waiting for their EAD and current employees who require reverification may present certain Forms I-797, Notice of Action, as a List C #7 document issued by the Department of Homeland Security that establishes employment eligibility, even though the notice states it is not evidence of employment authorization.  For the notice to be acceptable, it must include a Notice Date from Dec. 1, 2019, through and including Aug. 20, 2020, and indicate that USCIS has approved the employee’s Form I-765, Application for Employment Authorization. Both new and current employees may present this notice to complete Form I-9 until Dec. 1, 2020. New employees will also need to present an acceptable List B identity document. By Dec. 1, employers must reverify employees who presented this notice as a List C document. These employees must present new evidence of employment authorization — either their new EAD or any other acceptable documentation they choose — from either List A or List C.

As always, Hallett McCann Law Group is here to assist you if additional concerns arise regarding EAD and green card documentation.

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The H-1B Visa and COVID-19: Common Questions

For our Immigration Thought of the Week, Beata and I [Jennifer] decided to focus our attention on Covid-19 issues which are immediately impacting H-1B employees and their employers alike.  Below, you will find a list of the most common questions we are being asked, along with our specific advice on each topic.  As a side note, please understand that immigration attorneys, like many other professionals, often differ in opinion and/or strategy.  We, at Hallett McCann Law Group, will typically err on the side of caution, preferring a more conservative approach to immigration compliance and maintenance of status.  With that said, here are our top eleven (11) Covid-19 questions and answers:  

Can H-1B employees be furloughed under Covid-19?

No.  Under the H-1B program, an employer must file and secure a certified Labor Condition Application (LCA) before filing an H-1B petition.  When signing an LCA, the employer attests that they will pay the H-1B employee the higher of the following:

1. The “actual wage” paid to similarly situated employees; or
2. The “prevailing wage” for that occupation within the geographic area of intended employment.

Employers are required to pay the wage as determined above for the duration of the approved H-1B petition or until there is a bona fide termination.  As such, an H-1B employee placed on furlough must be paid at least the required wage for the duration of the furlough.

What obligations does an employer have to foreign national employees following termination?

The termination of an H-1B employee levies certain obligations on the employer to: (1) withdraw the approval of the visa with the United States Citizenship and Immigration Services (USCIS); and (2) offer the H-1B worker return transportation home. Failure to complete these steps within a reasonable time may result in the employer owing back wages and additional compensation to the employee.

What happens to H-1B workers if they are terminated during Covid-19?

Federal regulations allow H-1B or TN nonimmigrant workers a grace period of up to 60 days based upon a cessation of their employment. The length of the grace period is either 60 consecutive days or until the end of the worker’s current authorized validity period, whichever is shorter. The grace period not only gives the worker more time to leave the United States, but it also provides a window of opportunity to potentially find other employment with an 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 during the grace period, such as to F-1, after enrolling in a school.

An employer would be able to rehire a foreign national employee before the grace period expires.  As previously confirmed, the employer should have withdrawn the petition from USCIS upon termination to avoid wage liability. Thus, a new petition would be required, and the employee would not be able to begin employment until the new petition is approved.

Can the H-1B employment be changed from full-time to part-time employment?

Yes, though this would require the employer to file an amended petition with USCIS before the change could occur. Changing from full-time to part-time employment is considered a material change triggering the requirement of a new LCA and an amended petition.

Can H-1B nonimmigrants work remotely?

In response to the Covid-19 pandemic, many employers are requiring employees to work from home, to encourage social distancing and to comply with various state and government mandates.

The H-1B program is regulated by both USCIS and DOL. DOL regulations require employers to submit a certified LCA for each location at which the H-1B employee will be working. A key DOL requirement is the provision of notice to U.S. workers that an H-1B worker is being hired. Pursuant to the federal regulations, the notice can be provided either through a hard-copy posting at the actual worksite(s) where the H-1B worker will be employed, or through electronic notice. The electronic notice may be on the company’s website, intranet, newsletter, or e-mail to affected employees.

If the worksite location changes or additional worksites are necessary, a new LCA must be certified only if the new location is outside of the original intended area of employment. DOL guidance has steadfastly indicated that the employer need not file a new LCA for the worksite if it is within the same metropolitan statistical area (MSA) or “area of intended employment.  An MSA is defined by certain counties linked together into a specific MSA.  An “area of intended employment” is defined as “the area within normal commuting distance of the place where the H-1B nonimmigrant is assigned.” There is no rigid test or measurement of distance which constitutes a normal commuting distance, because there may be widely variable factual circumstances among different areas (e.g., normal commuting distances might be 10 miles by bus, 20 miles by car, 40 miles by train, etc.  As such, if the H-1B worker’s home is within the same MSA or area of intended employment as the employee’s normal worksite location, a new LCA is not required for the new worksite location.  Attorney opinions differ on the posting requirement at an H-1B’s private residence, citing the absurdity of the requirement.  However, the strict letter of the regulation requires it, and many employers may opt to forward the LCA to the employee’s home and have them post for ten consecutive business days, and then add the posting notice to the Public Access File when taken down.

If the employee’s home is outside the MSA or area of intended employment in which his or her worksite is located, then the following rules apply:

• Under Short-Term Placement rules, regulations permit H-1B employers to place H-1B workers at a worksite not listed on its approved LCA for up to 30 workdays each year. Such placement may be for an additional 30 workdays, but for no more than 60 workdays, in a one-year period, where the employer can show that the H-1B nonimmigrant maintains ties to the permanent worksite.  Please be aware that the workday limit is in the aggregate for the calendar year.  Workdays are days actually worked and do not include weekends and holidays. Short-Term Placement could therefore typically cover at least 6 weeks of work at a temporary location.

Can terminated H-1B workers seek unemployment benefits?

No.  Foreign national employees employed pursuant to an H-1B nonimmigrant visa cannot claim unemployment benefits because they will not be considered available for work, as their employment authorization subjects their employment to a specific employer.

Can a terminated H-4 EAD spouse seek unemployment benefits?

On the other hand, unemployment benefits may be available for an H-4 spouse with an Employment Authorization Document if the H-1B spouse remains in status. The H-4 spouse’s ability to work in the future is linked to the H-1B status of the spouse, not the employer, and if the H-4 spouse is terminated, s/he would be available for work if the H-1B spouse continues to maintain their H-1B status. The same likely holds true for those in F-1 (student) status who possess an Employment Authorization Document. 

Remember, unemployment benefits are guided by state rules, so check with your particular state regarding eligibility to make such a claim.

A quick word of caution from Hallett McCann Law Group– If H-4 spouses or F-1 students claim unemployment benefits, this act could potentially lead to negative implications in the employee’s green card process.  Recently, the Trump Administration has been busy revamping public charge definitions for green card processing.  During 2020, USCIS has sought to expand the number of benefits applicable to the green card public charge analysis.  Right now, state unemployment is not classified as a public benefit since, theoretically, one has earned unemployment insurance by contributing to it while employed.  However, it is not altogether unlikely that unemployment will see itself subject to analysis as a public benefit, given the immense cost of Covid-19 relief to the U.S. government.  Our advice to our clients?  We always recommend erring on the side of safety, which means H-4s and F-1s should forego unemployment benefits if at all possible. 

How has international travel been impacted for H-1Bs?

Numerous countries, including the United States, have implemented travel advisories and travel bans to and from certain regions of the world as the pandemic has progressed. The ban does not apply to U.S. citizens or lawful permanent residents.

In addition, the following international travel restrictions have been put in place by the United States:

• Trusted Traveler Program operations suspended until at least September 8, 2020 due to the COVID-19 pandemic. This temporary closure includes all public access to Global Entry, NEXUS, SENTRI, and FAST enrollment locations.

• Closing of the northern and southern U.S. Borders – On Wednesday, March 20, the United States and Canada announced that the border between the two countries would be closed to “nonessential” travel.  Nonessential travel is currently defined as “travel that is considered tourism or recreational in nature.” This decision was implemented at midnight, March 21, 2020, and currently in effect until September 21, 2020. 

How can companies comply with I-9 regulations when workforce is remote?

On March 20, 2020, due to precautions being implemented by employers and employees related to physical proximity associated with COVID-19, the Department of Homeland Security (DHS) announced that it will defer the physical presence requirements associated with Employment Eligibility Verification (Form I-9) under Section 274A of the Immigration and Nationality Act (INA).

Employers with employees taking physical proximity precautions due to COVID-19 will not be required to review the employee’s identity and employment authorization documents in the employee’s physical presence. However, employers must inspect the Section 2 documents remotely (e.g., over video link, fax or email, etc.), and obtain and retain copies of the documents, within three business days for purposes of completing Section 2.  Once normal working activities resume, physical inspection of the documents must take place. Employers also should enter “COVID-19” as the reason for the physical inspection delay in the Section 2 Additional Information field once physical inspection has occurred. Once the documents have been physically inspected, the employer should add “documents physically examined” with the date of inspection to the Section 2 Additional Information field on the Form I-9, or to Section 3 as appropriate.

This relief provision only applies to employers and workplaces that are operating remotely. If there are employees physically present at a work location, no exceptions are being implemented at this time for in-person verification of identity and employment eligibility documentation for Form I-9, Employment Eligibility Verification.

Is Premium Processing service available again?

On May 29, 2020, USCIS announced that it would resume premium processing for Form I-129 and Form I-140. 

Are there any other impacts that the pandemic is having on immigration?

Yes, USCIS has indicated that as they continue to reopen immigration services, offices will reduce the number of appointments and interviews to ensure social distancing, allow time for cleaning, and reduce waiting room occupancy.  Appointment notices will contain information on safety precautions that visitors to USCIS facilities must follow.  Clearly, these new precautions will lead to additional delays in USCIS in-person interviews and processes. 

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Sample Valid Reasons for Voluntary Unpaid Leave

I have practiced immigration law for over two decades now.  One topic which seems to pop up time and again is the issue of H-1B visas and voluntary administrative leave.  So I selected this as my Topic of the Week. 

Let’s face it, just like U.S. citizen employees, H-1B employees are very busy people with very busy lives.  They are ambitious professionals, moving forward not only professionally, but personally as well.  Their lives often include many life-changing milestones– getting married, the birth of a child, raising families, visiting with excited grandparents, scheduling vacations, and celebrating important family events.  These are all welcomed diversions from life’s day-to-day routines.  On the other hand, nonimmigrants may also have to deal with the unexpected (and unwanted): the sudden death of a beloved family member, a difficult or risky pregnancy, a seriously ill child, or an unforeseen accident or injury.  In short, life may be unpredictable.  For this reason, both USCIS and the U.S. Department of Labor recognize an employee’s need for voluntary administrative leave.

The Fair Labor Standards Act (FLSA) does not require payment for time not worked, such as personal leave, vacations, sick leave, or federal or other holidays. These benefits are generally a matter of agreement between an employer and an employee.  But we need to carefully distinguish voluntary administrative leave from that of non-productive time.  The key to voluntary administrative leave is the word “voluntary.”  In the past, I have discussed this matter with several different officers during DOL Wage & Hour audits.  Unpaid voluntary administrative leave must “make sense,” and “be well documented.”  An officer once provided me with this example: 

Say an employee has been assigned to the same end client project for an extended period of time.  He/She is about to successfully end that project and start a new one.  Now let’s say that same H-1B employee has several family members coming to the U.S. for the first time to visit and stay with the H-1B employee.  They haven’t seen each other for years, and of course, the family wants to visit Disney, maybe see Niagara Falls, or possibly travel the United States and visit other extended family members.  This is going to take weeks! 

In this scenario, it would make perfect sense that this employee might approach his/her employer and request voluntary administrative leave.  Voluntary administrative leave may be paid or unpaid – depending on company policy and compliance with the Family Medical Leave Act (FMLA).  Unpaid voluntary administrative leave might be the right solution for an H-1B employee who has been assigned to a demanding project for an extended period of time, has saved enough money to cover his/her bills, and just needs a break and some extended personal/family time.

On the other hand, let’s say an H-1B employee is a relatively new employee, assigned to a project for about three months.  The employee requests voluntary administrative leave for a four (4) month period because they want to travel or “need a break.”  It doesn’t make sense and certainly doesn’t appear “on its face” voluntary.  USCIS and DOL Officers view these types of leaves as suspect, and more consistent with H-1B non-productive time.  Unlike voluntary administrative leave, non-productive time must be paid in accordance with the proffered salary amount.   

Just remember, voluntary administrative leave, in the H-1B audit context, must always be initiated by the employee and must always be based on common-sense reasoning.  Lastly, the common-sense reason for the leave must be well documented.  This includes a letter from the H-1B employee requesting voluntary administrative leave that cites the basis for that requested leave.  This letter should be added to the employee’s human resource records for safekeeping. 

As an immigration attorney, I am familiar with RFEs requesting pay stubs which establish maintenance of status, I-140 ability to pay, and H-1B wage compliance.  When I have a W-2 which reflects a salary amount less than the proffered salary amount, I am immediately alerted to the fact that some life event has occurred, and I am searching for that administrative leave documentation.  I receive newborn photos (which I absolutely love seeing!), birth certificates, marriage photos (love those as well!), all documenting important life events that substantiate an employee’s request for voluntary administrative leave.  Sadly, I may also receive documentation from doctors, hospitals, death certificates, all confirming an H-1B employee’s need for voluntary administrative leave due to an unforeseen personal misfortune.  Whatever the reason, remember… documentation, documentation, documentation.

If you have any additional questions regarding this subject, please do not hesitate to reach out directly to our office, Hallett McCann Law Group.  Meanwhile, keep the baby pictures and wedding pictures coming, and please stay safe!

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