Seguritan US Immigration Articles

E-1 or E-2 Visa for Foreign Employees

A person can obtain an E-1 or an E-2 visa without necessarily being a treaty investor or a treaty trader.  He can obtain an E-1 or E2 employee visa instead. A noncitizen employee of a treaty trader may obtain an E-1 visa and a noncitizen employee of a treaty investor may obtain an E-2 visa, if said employee is coming to the US to perform duties that are executive or supervisory in character, or, if he has special qualifications that are essential to the efficient operation of the enterprise.

There are a few things to be considered before applying for said visa. First and foremost is that as an employee of a treaty trader or treaty investor, you must have the same nationality as your employer. Since this is also a treaty-based visa, it is important that your employer comes from a country that has a standing treaty or bilateral relations with the United States to be able to engage in economic and commercial relations. It is important that you determine what the nationality of your employer’s business is. A business that is at least 50% owned by treaty nationals is eligible to become E-1 or E-2 visa recipient and the employees are, too.

The Philippines is one of the many countries that have commercial and navigational relations with the US. In fact, the Philippines has one of the longest treaty relations that started back in Sept. 6, 1955.

It is important also to consider what your role is to your company. In order for one to be eligible for an E-1 or E-2 employee visa, one should be an essential, managerial or executive employee of the company.

To be considered as an essential employee, you must be a specialist and not merely an ordinary skilled worker. You do not need to have an executive or supervisory function if your E-1 or E-2 employee visa application is based on being an essential employee. One must bear in mind that the United States Citizenship and Immigration Services (USCIS) looks into how your skills actually contribute to the successful operations of the company. They look into your expertise in the area or your length of training or experience as well as your salary. They also consider the availability of American workers in your field of expertise to consider your essentiality in the business. In one case, E-2 employee visa applicants who were nationals of Great Britain and employed by IAD Modern Design, Ltd. which at that time, had a contract with General Motors (GM), were considered essential to the company since it was proven that there was not enough American automotive design engineers who can do what they do best— redesign GM line of cars into smaller, Europe-style vehicles.

Your duty or position may also have an executive or supervisory character and USCIS looks not just into the title of the position vis-à-vis the business’ organizational structure but it also looks into your degree of control and responsibility in the operations of the company, the number and skills of the employees you will supervise, your salary level as well as your qualifying experience. Your executive and supervisory function must be your principal and not merely an incidental function.

Getting an E-1 or an E-2 employee visa can entitle one to work and live in the US and bring their family here as well. The good thing is that the spouse or children of the employee need not have the same nationality as the treaty trader or treaty investor employing the principal applicant. The E-1 or E-2 employee visa is issued for up to five (5) years and it can be renewed indefinitely in five-year increments.

While holding said visa, the E-1 or E-2 employee can obtain public education access for their children and access to universities without the need to apply for a student visa; obtain a social security number and of course, open bank accounts and get a driver’s license.

Terminating Employment of H-1B Workers

Through the years, the H-1B visa program has become a way for American companies to fill their need for highly skilled workers. Through this program, US companies temporarily employ foreign nationals to work in specialty occupations or those requiring a bachelor’s degree or higher.

What happens however if after bringing in an employee into the company, the employer discovers that he is not a good fit or that he/she is not what the company needs? After all the tedious paperwork, does it have any recourse?

Any employer planning to terminate an employee on an H-1B visa status must follow not only the employment contract and applicable state and federal laws but also must adhere to regulations regarding H-1B employees. They must undertake a bona fide termination of the employment relationship, otherwise they could end up paying a considerable amount of money in back wages and other penalties.

The bona fide termination of employment involves a three-step process: (1) notifying an employee that his/her employment has been terminated; (2) notifying USCIS of the termination so that the petition could be revoked; (3) providing the worker with the reasonable cost of return transportation to his or her home country.

In one case involving a Filipino H-1B worker, the US Department of Labor (DOL) said that the employer failed to terminate its employment relationship on a certain date because it continued to market the non-immigrant to its clients. In the said case, the employer never sent an official termination notice to the worker. While it claimed to have written a letter terminating his employment, said letter was not offered in evidence. Moreover, even after the date that the employer claimed to have expressly told the worker that the employment was terminated, the former still continued to arrange for job interviews. Because of this, the first requirement was not fulfilled.

Next, the employer must notify USCIS that the employment relationship has ended. In the said case, it was stated that the applicable date for determining when the employer provided notice to USCIS was not the date the USCIS notified the employer that it had revoked the H-1B petition but the date the employer notified USCIS of its desire to revoke the petition.

Lastly, the employer must pay for the H-1B worker’s return trip home. An offer of return transportation is sufficient to fulfill this process.

It is important for employers to realize that failure to follow these steps could mean that they do not end their obligations of paying wages to their H-1B worker. Under the H-1B regulations, the employer must continue to pay wages unless the employer can prove by a preponderance of evidence that a bona fide termination was undertaken.

If the DOL determines that the employer committed a wage violation, it may also order the employer to pay back wages for the entire term of the LCA supporting the H-1B petition, calculated at the higher of the actual or prevailing wage. The H-1B employee may likewise be entitled to pre- and post-judgment interest on all back wages due.

In the same case, the DOL ordered the employer to pay back wages from February 15, 2010 to October 27, 2010 even if the employer notified the USCIS of the termination of employment in June 2010 and offered a plane ticket home on May 21, 2010. It was only on October 27, 2010 when the employer unequivocally put on notice that he was no longer an employee.

Nurse Awarded Back Wages for Time He Didn’t Work

A Filipino nurse was recently awarded back wages for the period that he was not performing work due to lack of assigned work.

Vicente de Dios was petitioned by Medical Dynamic Systems, Inc., a health staffing company, to work as a fulltime nurse manager at a salary of $37.06 per hour. He contended that his H-1B status began on January 28, 2010 but he only worked for 24 hours in March 2010. On May 21, 2010, he was asked by the Marketing Director of Medical Dynamic to look for another sponsor since the company was unable to provide him a job placement. He was offered a plane ticket to go back home. However, after that, it kept communicating with him asking him to attend a few job interviews.

De Dios claimed that Medical Dynamic put him in a non-productive status and failed to perform its obligation under the H-1B petition. He was willing and able to perform his job as a nurse manager but Medical Dynamic attempted to employ him in positions other than what was in the petition. He also claimed that he paid the H-1B filing fees and attorney’s fees to process his application, in violation of H-1B regulations.

According to the decision of the Administrative Law Judge (ALJ), the employer must pay the required wage even if the H-1B worker was in non-productive status. If the non-immigrant worker was unable to perform work due to a decision by the employer like lack of assigned work, the worker was deemed to be “benched”. “Benching” is the nonproductive time that can occur when a company brings H-1B workers to the US and contract them out to other entities instead of use them in their own business. By law, the employer is still required to pay the said worker his required wage rate.

The only time that employers need not pay is if the nonproductive status happened because of circumstances that are attributed to the worker himself and unrelated to his employment like touring the US, caring for ill relative, maternity leave, among others.

The ALJ highlighted that an employer’s obligation to pay the H-1B worker’s back wages extends from the date the worker makes himself/herself available for work or comes under the control of the employer until the time that a bona fide termination of employment relationship was undertaken.

The ALJ ordered Medical Dynamic to pay De Dios for the period starting February 15, 2010, the date when De Dios made himself “available for work” or came “under the control of the employer” up through October 27, 2010, the date when the company made a bona fide termination of employment. It was liable to pay $55,587.20 in back wages for 37 weeks and two days at a rate of $37.06/hour, at 40 hours per week. It was also made liable to pay compound interest for the back wage assessment.

Furthermore, it was also held that the company violated the H-1B regulations when it made the worker pay for his H-1B filing fees and attorney’s fees, therefore reducing his pay. When a worker is asked to pay for the expenses in the filing of his H-1B petition, the ALJ said that it is in effect a wage deduction which would reduce his salary below that required in the petition. In the said case, De Dios paid $3,600 for his H-1B processing, which, according to the decision, was clearly in violation of the regulation. Medical Dynamic was then asked to remit the said amount to De Dios.

Proposed H-2C Visa to Benefit Nurses and Less Skilled Workers

A bill to create a new visa program for temporary foreign workers has been introduced in the Senate by Senator Jeff Flake. Known as the Willing Workers and Willing Employees Act of 2016, the bill would create a 10-year guest worker pilot program.

The new visa would be called H-2C and it will allow employers to hire foreign workers with less than a bachelor’s degree to perform nonagricultural work in the US.

At present, there are several nonimmigrant visas available to temporary workers such as the H-1B visa for professionals and other highly skilled workers, the H-2A visa for temporary or seasonal agricultural workers and the H-2B visa for temporary or seasonal nonagricultural workers. But they do not address the need for year-round workers with less than a bachelor’s degree.

Foreign nurses and other health care workers will be eligible to apply for the H-2C visa. Registered nurses are generally not eligible to file for H-1B visa because nursing is not considered a specialty occupation under the H-1B program. A bachelor’s degree is not required to become a registered nurse.

The H-2C visa would be available only in counties or metropolitan statistical areas where the unemployment rate is 4.9 percent or less.

Employers will be registered with the Department of Homeland Security and they will have to attest that they had actively recruited workers but were unable to find a qualified US worker and that they have no labor dispute or layoffs.

There will be a flexible cap of 65,000 in the first year and 45,000 to 85,000 in the subsequent years depending on the economic demand. At least a quarter of the number of registered positions initially allocated for each 6 month-period shall be reserved for small business employers.

The H-2C visa would be granted initially for up to three years but could be renewed within the ten-year pilot period. The employees could be employed at any worksite and the employers could employ them at any worksite provided such location was advertised.

The law will require the Director of the Bureau of Census and other government agencies to conduct a study on the impacts of the H-2C program on home ownership rates, housing prices, access to quality health care, criminal justice system and employment and wage rates. Within three years from the enactment of the law, they will report to Congress on the findings of their study.

Senator Jeff Flake said that “this kind of flexible, market-based visa program designed to better meet economic demand is exactly the approach we need to bring US immigration policy into the 21st century”.

Several groups have applauded the introduction of this bill. The American Health Care Association said that it will help ease the nursing shortage by “making it easier for foreign nurses and other health care workers to get jobs at skilled nursing centers.”

H-1B Processing After Cap is Reached

The US Citizenship and Immigration Services (USCIS) recently announced that the H-1B cap for fiscal year 2017 has been reached. Over 236,000 petitions were received during the filing period that ended on April 7.

It conducted a computer-generated random process or lottery on April 9 to select the petitions that met the 65,000 cap for the general category and 20,000 for the advanced degree exemptions.

The lottery for the advanced degree came first and those not selected became part of the random process for the 65,000 limit. All rejected petitions will be returned along with their filing fees.

The USCIS will continue to accept and process petitions that are filed to extend an H-1B status, to change the terms of employment of an existing foreign worker with the same US employer, to transfer an H-1B worker to another US employer and to allow current H-1B workers to work concurrently in a second H-1B position.

It will also accept cap exempt H-1B petitions such as those filed for alien workers who will work at an institution of higher education or a related or affiliated nonprofit entity, nonprofit research organization, or a governmental research organization. Third party petitioners that are not qualifying entities may claim cap exemption if the beneficiary will work at a qualifying institution.

J-1 physicians who have obtained a Conrad 30 waiver are also cap exempt.

Meanwhile, the American Immigration Lawyers Association (AILA) has expressed concern over the huge disparity between the demand for alien skilled workers and the mandated cap that Congress has provided. AILA President Victor Pradis Nieblas said that “artificial limits established more than a generation ago are again hobbling the economic potential of this great nation.”

Nieblas further said “Why do we continue to artificially limit this program? In a reasonable system, market demand should factor into how many business visas are granted, and indeed, demand for H-1B visas slowed when the economy took a downturn. But each year that we cap these visas when demand outweighs supply, all we’re doing is creating obstacles to economic growth. We’re losing out on shared prosperity for no good reason.

“The United States is one of the most important economies in the world, but its full potential is going unrealized. We live in a wireless world, but our visa system is a relic from the days of dial-up modem. It’s long past time for Congress to lead on this issue and reform the H-1B program in a way that addresses the needs of American businesses, US workers and our economy. Congress must bring our immigration system out of the last century and into this one.”

The H-1B petition is used by most US companies to hire skilled alien workers to fill up skill gaps in the local labor supply.

H-4 Employment Authorization Guideline

A question and answer guideline concerning the employment authorization for certain H-4 dependent spouses was recently released by the USCIS. It provides information on eligibility, the application process, adjudication and processing times.

The H-4 employment authorization rule took effect on May 20, 2015. Many have already applied for the benefit but further clarification of the process was needed.

Under the rule, eligible are the spouses of H-1B nonimmigrants who are the beneficiaries of an approved I-140 immigrant petition or who have been granted extension beyond six years under the AC21 law.

The I-140 need not have been filed by the current H-1B employer or by the employer who had filed the H-1B petition.

The I-140 must not have been revoked. Both the spouse and the dependent must be maintaining their nonimmigrant status.

The authorization is unrestricted. This means that you as a dependent spouse may work anywhere or engage in self-employment or start a business.

If you file you must submit a paper I-765 application, not an electronic form, and submit supporting documents. Supporting documents include evidence of H-4 nonimmigrant status, evidence of your relationship with your H-1B spouse such as your marriage certificate and documents proving his/her H-1B status. This could be a copy of Form I-797, Notice of Approval for the Form I-129 filed on your spouse’s behalf. This could also be a copy of your H-1B spouse’s Form I-94, personal data page in his/her passport, visas on which he or she last entered the US and the latest US admission stamped in his/her passport.

If your spouse’s H-1B status is based on the AC21 law, you must include evidence that your H-1B spouse is the beneficiary of a Permanent Labor Certification Application filed at least 365 days before the expiration of his/her six-year stay. This could be a copy of a printout from the Department of Labor (DOL) showing the status of the Permanent Labor Certification Application filed on his/her behalf.

You may also submit proof that your H-1B spouse’s Form I-140 was filed at least 365 days before the expiration of his/her six-year stay as an H-1B. An example would be to include a copy of your H-1B spouse’s Form-I-797 Receipt Notice for the Form I-140.

If you are applying based on your spouse being a beneficiary of an approved Form I-140, submit a copy of the approval notice of his Form I-140 or if unavailable, anything that could explain why it is unavailable.

If you are unable to obtain the abovementioned documentation for whatever reason, sworn affidavits by non-parties who have direct knowledge of the relevant events and circumstances may likewise be submitted as substitute evidence.

While the I-765 is pending, you may travel if you are currently in status and meet all other admission requirements. If the I-765 is filed concurrently with your I-539 change of status to H-4, travel will be treated as abandonment of application.

Processing time is about 90 days. The employment authorization card cannot be used to enter and exit the US.

USCIS Issues H-1B Filing Instructions

H-1B petitions for fiscal year 2017 that starts October 1, 2016 will be accepted beginning April 1, the USCIS announced last March 16.

More petitions than the H-1B cap of 65,000 are expected to be filed during the first five business days. So all the petitions received during that period will be subject to a computer-generated lottery system to randomly select the petitions required to meet the cap.

Last fiscal year, the USCIS received approximately 233,000 during the first five business days in April. The USCIS will notify the public when the H-1B cap has been met. Those not selected will be returned.

The first 20,000 H-1B petitions for individuals holding a US master’s degree or higher are exempted from the cap. Once this limit is reached, the petitions will be subjected to the regular cap.

Processing of H-1B petitions may be expedited through premium processing request on Form I-907. This may be filed concurrently with the H-1B petition. For a fee of $1,225, premium processing guarantees a fifteen calendar day processing of filed petitions from receipt of the request. This year the USCIS will start premium processing of H-1B petitions subject to cap no later than May 16.

Before the filing of an H-1B petition on Form I-129, the petitioner must file with the U.S. Department of Labor, a Labor Condition Application (LCA). The certified LCA must be filed with the Form I-129 petition.

To be classified as a specialty occupation for H-1B purposes, the occupation requires at least a bachelor’s degree or higher in the specific specialty or its equivalent. In order to be eligible for a specialty occupation, the beneficiary must have at least one of the following: (1) US bachelor or higher degree, (2) foreign degree equivalent to a US bachelor degree or higher, (3) an unrestricted license or certification to practice profession or (4) experience equivalent to completion of degree.

The H-1B petition must be accompanied by proof that the beneficiary is eligible for H-1B classification. Documentary evidence includes diploma, transcript of records, credentials evaluation and license to practice the profession, if required, among others.

The USCIS allows for the submission of other evidence if the degree has not been awarded yet but requirements for the degree have been met. The final transcript as well as a letter from the Registrar confirming that all degree requirements have been met may suffice.

A U.S. employer cannot file multiple H-1B petitions for the same beneficiary. Multiple H-1B petitions by a single employer for the same beneficiary will be rejected. However, related employers such as a principal and subsidiary may file for the same worker for different positions subject to other requirements. The H-1B beneficiary may work for more than one employer provided that each employer files a separate petition with the required labor condition application.

There is a base fee of $325 for an H-1B petition, an ACWIA fee of $750 or $1,500 depending on the number of employees of the employer and an anti-fraud fee of $500.

F-1 STEM Students Can Now Stay Longer

A new Department of Homeland Security (DHS) rule just gave international students with F-1 visa two more years of on-the-job training here in the US.

Before, an F-1 student with a degree in science, technology, engineering and mathematics (STEM) from a US institution of higher education can apply for 17 months of OPT on top of the one year already allowed to them after graduating in a STEM field. Under the new rule, starting May 10, students can apply for a 24-month extension of their post-completion OPT.

This means that the new rule that was published last March 11 gave international students earning a degree in these fields the chance to experience three years of on-the-job training. This gives them more time to expose themselves to valuable and practical STEM experience.

This is good news for a lot of students who want to gain more knowledge in their field of study. This is also great news for US employers who can benefit from their skills and know-how.

However, there are a lot to consider as the new rule is very strict when it comes to reporting.

In order for one to be eligible to apply for the extension, you have to have a bachelor’s, master’s, or doctoral degree from a school that is accredited by a U.S. Department of Education-recognized accrediting agency and is certified by the Student and Exchange Visitor Program (SEVP) when you submit your STEM OPT extension application. It is also important that your OPT must be in a field related to science, technology, engineering and mathematics. Should you have a non-STEM master’s degree but you have a bachelor’s degree in any of the fields mentioned, you can use your bachelor’s degree to apply for a STEM OPT extension.

A formal training plan developed with your prospective employer is also necessary. You need to draw a plan where you and your future employer identify learning objectives and the ways by which you envision to achieve these. In order to keep track of how these goals are being met, the DHS may conduct unannounced site visits when necessary.

The new rule also imposes a six-month validation requirement where you or your school must confirm the validity of certain information about you. This information may be about your home country, your address, current employment status and other biographical information. There is also a yearly self-evaluation that you will submit to your designated school official (DSO) detailing the progress of your on-the-job training. The employer must sign this evaluation.

Come May 10, USCIS will accept applications for STEM OPT extensions. If you feel like you need more time to hone your skills here in the US, you must submit an I-765, Application for Employment Authorization together with an I-20 Certificate of Eligibility for Nonimmigrant Student Status, endorsed by your DSO.

You may also submit your application up to 90 days before your current OPT employment authorization expires, and within 60 days of the date your designated school official (DSO) enters the recommendation for OPT into your Student and Exchange Visitor Information System (SEVIS) record.

Consequences of Failing to Maintain Non-immigrant Status

For aliens who entered the U.S. on a non-immigrant visa, it is important for them to maintain their status and to engage only in activities consistent with the status. Aliens who fail to maintain status become deportable. They can neither change to said non-immigrant status nor apply for adjustment of status to permanent residence.

A foreign national who wishes to apply for admission into the U.S. generally applies for a visa at a U.S. consulate overseas. There are several types of visa classifications depending upon their specific purpose. Aliens who wish to come to the U.S. for pleasure are issued a B-2 visa. They are generally allowed three (3) to six (6) months to stay with a possibility to extend their status for another six (6) months.

Once a foreign national is legally admitted into the U.S., it is the date on the I-94 that governs his legal immigration status and the duration of his authorized stay in the U.S. The I-94 card is no longer issued. The foreign national can access the most recent I-94 admission record through the I-94 website. If the alien overstays or remains in the U.S. beyond the date on the I-94, the person becomes out of status.

If they overstay for six (6) months or more, they are subject to the three-year bar. If they overstay one year or more, the bar extends to ten years. The three or ten year bar means that if they leave they cannot reenter the U.S. until after three or ten years of stay abroad.

If a non-immigrant decides to pursue a different purpose or engage in another activity in the U.S., he has to apply for a change of status. An example is a person who entered as a student with an F-1 visa gets a job offer after finishing his/her studies in the U.S. Given the change of purpose of the stay in the U.S. from studying to working, the prospective employer may petition for a change of status on his behalf from F-1 to H-1B.

Likewise, a person who originally came as a tourist with a B-2 visa to visit family and friends may later on want to pursue studies in the U.S. Instead of going back to his country to apply for a new F-1 visa, the person can opt to apply for a change of status to F-1 with the U.S. Citizenship and Immigration Services (USCIS).

An alien on a B-2 visa who files Form I-539 to change status to student, may not start classes prior to its approval. An F-1 student fails to maintain his status if he fails to maintain a full course of study or if he transfers schools without permission.

An F-1 student who decides to work in the U.S. may not begin working before the Form I-129 petition filed by the employer is approved. Also temporary workers fail to maintain status if they change jobs without authorization. Those who work without authorization also fail to maintain their status.

The alien is authorized to engage in activities consistent with the status he is seeking only through the formal USCIS approval of the application to change status. If the alien took on activities not allowed under his current status, the application will most likely be denied. It is therefore important that the non-immigrant not violate the conditions of his non-immigrant visa/status.

Lawful Admission Required for Adjustment of Status

One of the requirements for adjustment of status is the alien’s lawful admission to the United States. This means that the alien must have been inspected, admitted or paroled into the US.The Immigration Nationality Act (INA) defines the terms “admitted” and “admission” as “the lawful entry of a noncitizen following inspection and authorization by an immigration officer.”

For foreign nationals who enter the US by air or sea and who are processed by the U.S. Customs and Border Protection (CBP), lawful admission is generally easier to demonstrate as they are normally issued an I-94 Form upon entry.

Since April 2013, the CBP no longer issued the paper I-94 and created an electronic I-94 Form based on the foreign national’s travel documents. The electronic Form I-94 may be printed by accessing the CBP’s website. Aside from the I-94, the CBP office also makes an annotated admission stamp on the foreign national’s passport which may also serve as proof of lawful admission.

However, for those travelling by land, there have been instances when border officials simply “wave through” foreign nationals who enter the US by car without asking any questions. Was there lawful admission in this case?

In a 1980 case, the BIA held that an alien who was “waved through” and who did not make a false claim to citizenship was “inspected” and “admitted” to the US for purposes of adjustment of status. In that case, the alien was a passenger in a car entering the US. The border official waved them through after questioning the driver. She was not asked any question nor did she volunteer any information.

The BIA reasoned that the noncitizen was “inspected” when she physically presented herself for questioning and did not make a false claim to citizenship and she was “admitted” when the officer permitted her to enter the United States.

In 1996, Congress enacted the Illegal Immigration Reform and Immigration Responsibility Act (IIRIRA) and amended the INA to define the meaning of “admitted” as being “the lawful entry of a noncitizen following inspection and authorization by an immigration officer.”

However, the Board reaffirmed its earlier decision. The Board held that “lawful entry” did not require that the entry be substantially regular; it only had to be procedurally regular. In this case, the noncitizen was also a passenger of a car crossing the US-Mexico border. She was not asked any questions and was waved through by the border official. It held that, just like in an earlier case, the admission was procedurally regular and met the definition of “admission” under the INA.

Thus, if a noncitizen does not make false claim to citizenship, is not asked any questions, does not volunteer any information, and is waved through by a border official, he has been “admitted” even if he did not have valid entry documents.

The noncitizen does not gain lawful status upon entry in the United States and is still removable for being “inadmissible at the time of entry”. However, since the noncitizen was “admitted”, he is eligible for immigration benefits, such as adjustment of status in the US, if the noncitizen later on marries a US citizen, subject to other requirements under the law.

Where primary proof of lawful admission is not available such as in the case of the noncitizen who was waved through, secondary evidence may be submitted. Secondary evidence may include affidavits regarding admission.

A request for evidence (RFE) is expected when secondary evidence of lawful admission is submitted. A timely response to the RFE must be submitted even if the requested documents have already been initially submitted.

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