Seguritan US Immigration Articles

New Rules to Benefit Immigrant Workers

The USCIS released last November 18 a final rule aimed at improving the processes for certain employment-based immigrant and nonimmigrant visa programs for highly skilled workers. Called, “Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers”, it goes into effect on January 17, 2017.

The new rule is intended to improve the ability of employers to hire and retain highly-skilled workers who are beneficiaries of approved immigrant visa petitions, improve the process of sponsoring nonimmigrant workers for lawful permanent resident (LPR) status and increase the ability of foreign workers to seek better employment opportunities, seek promotions, and change employers, if necessary to further their career.

The changes under the rule conform DHS regulations to existing policies and practices implementing the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) and the American Competitiveness in the Twenty-first Century Act of 2000 (AC21).

The changes would benefit immigrant workers because they clarify and expand when immigrant workers may keep their priority date when applying for adjustment of status. While priority dates cannot be transferred to another alien, it can be retained by an alien for his subsequently filed EB-1, EB-2 or EB-3 petition as long as the approval of the initial Form I-140 petition was not revoked for fraud, willful misrepresentation of a material fact, the invalidation or revocation of a labor certification, or material error. This will help certain workers accept promotions, change employers, or pursue other employment opportunities without fear of losing their place in line for immigrant visas.

For certain workers with approved Form I-140 petitions in the EB-1, EB-2 or EB-3 categories, but who are unable to obtain LPR status due to immigrant visa backlogs, the final rule provides that Form I-140 petitions that have been approved for 180 days or more would no longer be subject to automatic revocation based solely on withdrawal by the petitioner or the termination of the petitioner’s business. The petition will continue to be valid for certain purposes like retention of priority dates, job portability and extension of status.

The job portability provision establishes two grace periods of up to 10 days for individuals in the E-1, E-2, E-3, L-1, H-1B and TN classifications including their family members which may be granted to these nonimmigrants at the time of admission or upon approval of an extension of stay or change of status.

A grace period of up to 60 consecutive days is also established for those in the E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 or TN classifications whose employment has ended prior to the end of the period of validity of their petition so they may be able to find new employment opportunities or extend their nonimmigrant status.

A one-year employment authorization for beneficiaries of an approved EB-1, EB-2 or EB-3 immigrant visa petition is also available if they are currently in the US in E3, H-1B, H-1B1, O-1 or L-1 nonimmigrant status and if an immigrant visa is not yet immediately available to them and they can show compelling reasons for the issuance. Their family members can also obtain employment authorization although this cannot be granted until the principal is granted.

Application to renew employment authorization is also allowed prior to the expiration of the initial grant as long as the alien worker can demonstrate that he continues to face compelling circumstances and he is the principal beneficiary of an approved EB-1, EB-2 or EB-3 petition and either an immigrant visa is not readily available or there is only 1 year or less difference between his priority date and the Final Action Date listed in the visa bulletin for his category and country of chargeability. This eligibility also extends to family members but cannot be granted until the principal is granted.

The new rule also clarifies some policies and procedures pertaining to the H-1B program such as providing H-1B status, beyond the six-year period of admission, determining cap extension, H-1B probability and license requirements.

 

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.

Immigration Programs Extended Under New Appropriations Law

On December 18, 2015, President Obama signed into law the Consolidated Appropriations Act of 2016 which includes the extension of four immigration programs until September 30, 2016. These programs are the EB-5 regional center program for immigrant investors, the Conrad 30 program for J-1 physician visa holders, the special immigrant visa for religious workers, and E-verify.

The bill also includes changes in the L-1 and H-1B fees paid by employers with more than 50 employees where 50% or more of the employees have H-1B or L-1 status.

The EB-5 regional center program grants green cards to foreign nationals who invest in any of the regional centers in the U.S. Unlike the regular EB-5 program which requires the investor to create 10 full-time jobs in two years, a regional center investor can use the more relaxed requirement of indirect job creation.

Another main difference is the amount of capital to be invested. Under the standard program the investment must be $1,000,000 unless it is made in a targeted employment area, which means that the place is a rural or high unemployment area. On the other hand, $500,000 is usually sufficient for investment in regional centers because most of them are already in targeted employment areas.

As many as 3,000 visas can be granted regional center investors annually. With a faster processing time and ongoing efforts to speed up the process in order to promote the program’s job-creation benefits, the EB-5 visa is one of the fastest routes to a U.S. green card.

Another program extended by the law is the employment-based 4th preference category visa for non-minister religious workers. This visa grants special immigrant status to individuals who are in a religious vocation or occupation but are not religious ministers.

The applicant must have been a member of a religious denomination with a bona fide non-profit religious organization in the U.S. and he must have also been working in a religious vocation or occupation. A religious vocation or occupation excludes positions that are primarily administrative in nature.

There are 5,000 visas reserved for this category which includes accompanying and following-to-join spouses and children.

The Conrad 30 program allows state health departments and agencies to recommend the waiver of the 2-year foreign residence requirement for up to 30 foreign medical graduates per year in J-1 status who agree to serve in medically underserved areas. This waiver allows them to change their status to H-1B or adjust to permanent residence and meet the demand for healthcare in areas where doctors are in short supply. Those who obtain the waiver are not subject to the annual H-1B cap.

The E-Verify system is an Internet-based program that allows a participating employer to electronically confirm the employment eligibility of a newly-hired employee using the databases of the USCIS and the Social Security Administration.

H-1B Option for Physical Therapists

Physical Therapists continue to be in demand in the U.S. The Bureau of Labor Statistics projects that their employment will grow by 30% from 2008 to 2018. A recent report by the American Physical Therapy Association shows that the vacancy rate of physical therapists ranges from 13.1% in outpatient settings to 18.6% in long term care settings.

Many physical therapists are recruited from foreign countries such as Philippines and India. There are two ways that they enter the U.S., namely, as nonimmigrants or immigrants.

The most common nonimmigrant option is the H-1B route. H-1B is reserved for specialty occupations and has an annual cap of 65,000. Hospitals and other health care facilities may be exempted from the cap if they are nonprofit organizations affiliated with an institution of higher education.

The position of physical therapist is a specialty occupation. But there was a question over a year ago as to whether a bachelor’s or master’s degree was required for H-1B. The Occupational Outlook Handbook in its 2009 edition stated that the minimum requirement for a physical therapist in the U.S. is a master’s degree so the USCIS denied H-1B petitions for physical therapists that did not have a master’s degree.

But the issue was resolved by the USCIS in a memo dated May 20, 2009. In that memo the USCIS said that in adjudicating H-1B petitions filed on behalf of beneficiaries in health care specialty occupation, the Occupational Outlook Handbook is only a starting point and that other authoritative sources such as the state licensing board standards must be consulted.

The USCIS memo went on to state that if the beneficiary has a valid license to practice physical therapy in the state of intended employment, the beneficiary will be considered to meet the qualifications to perform services in a specialty occupation, regardless of whether the said beneficiary has a bachelor’s degree or a master’s degree.

The license may be unrestricted or restricted. If it is unrestricted the H1-B petition is approvable for up to 3 years. If it is restricted (e.g., license approved except for mandatory supervised practice) the petition may be approved for one year or for the duration of the license, whichever is longer.

There are states that do not issue a license because of a lack of social security card and/or evidence of employment authorization. So long as the beneficiary complies with the requirements for licensure and has filed an application for a license in accordance with the state rules and procedures, the H-1B petition may be approved but only for a period of one year.

If the beneficiary is abroad and therefore cannot take the licensure examination as it’s given only in the U.S., the H-1B petition may still be approved for one year provided the physical therapist has completed all the licensure requirements and is allowed to take the test once he/she arrives in the U.S.

A visa screen certificate is required to be submitted with the H-1B petition. This may be obtained from the Commission on Graduates of Foreign Nursing Schools (CGFNS) or the Foreign Credentialing Commission on Physical Therapy (FCCTP). The certificate which is valid for 5 years certifies that the physical therapist’s education, experience and training and English proficiency are equivalent to those of a U.S. worker.

Changing F-1 Student’s Status to H-1B

To change a nonimmigrant status to another, an applicant must be in lawful status not only up to the time that the application is filed but also up to the time when the new status becomes effective. 

In the case of a change to cap subject H-1B for fiscal year 2011 that starts on October 1, 2010, the applicant must have a valid status until that date. If the applicant is out of status, he/she is required to leave the U.S. and apply for H-1B visa at a U.S. consulate abroad. 

The cap refers to the 65,000 annual numerical limitation imposed on initial H-1B visas. In the last several years, the number of H-1B petitions filed exceeded the cap. The latest United States Citizenship and Immigration Services (USCIS) report shows that so far, 13,500 petitions were received since the start of the filing period on April 1. It is expected that the cap will again be reached before the end of 2011 fiscal year. 

There is a new immigration regulation that automatically allows certain students with a pending or approved H-1B petition to remain in the U.S. during the time when the F-1 status and work authorization would otherwise expire. This regulation provides a way to fill what is referred to as the cap gap so that the students do not have to go abroad to obtain their H-1B visas. 

An example of a cap gap occurs when a student’s optional practical training (OPT) ends in the spring and his/her status expires 60 days after that, leaving a gap of several months before the H-1B status begins on October 1. 

To qualify for the cap gap extension, the H-1B petition must be filed while the student’s authorized duration of status (DS) is still in effect (including any OPT period and the 60 day preparation time known as the grace period.) 

Once the petition is timely filed, the cap gap extension begins and will continue until the adjudication of the petition is completed. To prove continuing status, the student should obtain an updated Form I-20 from his/her designated school official. 

If the H-1B petition is subsequently rejected, denied or revoked, the student will be entitled to the standard 60-day grace period to prepare to depart unless the denial or revocation is based on fraud, misrepresentation or status violation. The grace period begins on the date that the letter of rejection, denial or revocation is postmarked. 

If the H-1B petition is denied or withdrawn, the student may apply for a STEM OPT extension provided that his/her degree is included on the STEM designated degree program list and the application is made within ten (10) days of the denial or withdrawal. STEM refers to degrees in science, technology, engineering and mathematics. Students who obtained such degrees are eligible for a 17-month extension in addition to the twelve (12) months initially granted. 

The student who is granted an automatic extension cannot travel outside the U.S. during the cap gap period. If the student wants to travel, he/she will have to apply for an H-1B visa at a U.S. consulate abroad.

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