July 28, 2023 - Weekly Immigration News Update

Posted by Keshab R. Seadie | Jul 28, 2023 | 0 Comments

We have some important updates to share with you regarding the H-1B visa cap lottery and changes in the I-9 verification protocol as well as the use of compelling circumstances EAD.

2nd H-1B Visa Cap Lottery Announcement:

USCIS has recently determined that it will need to select additional registrations from the previously submitted electronic registrations using a random selection process to reach the FY2024 H-1B cap. The second selection process is currently underway, and USCIS will announce when it is completed. Those with selected registrations will receive a selection notice, which includes details of when and where to file their H-1B visa application. We anticipate a considerable number of cases being selected, as some individuals who were initially chosen in the lottery chose not to proceed with filing their H-1B visas due to concerns about potential legal issues. 

Remote I-9 Verification Protocol and New I-9 Form:

Starting August 1, the Department of Homeland Security (DHS) will permit qualified E-Verify employers to use remote I-9 document inspection procedures. This move aims to streamline the I-9 verification process and accommodate remote work situations. Alongside this update, DHS will release a new edition of Form I-9 dated August 1, 2023, which will become mandatory for all employers on November 1. Employers should ensure they update their documentation accordingly to remain compliant. 

Consequences of double filing of H-1B Visas:

Engaging in the double filing of cap-subject H-1B visa petitions by colluding with multiple employers is a fraudulent and illegal activity. The consequences of such actions can be severe and may include: 

  1. Visa Denial: USCIS may deny both or all the H-1B visa petitions associated with the double filing. This can result in the applicant being barred from obtaining an H-1B visa for a certain period or permanently.
  2. Legal Penalties: Engaging in visa fraud, including double filing, can lead to legal penalties such as fines and potential imprisonment.
  3. Ban on Future Visas: Individuals found guilty of visa fraud may face a ban on obtaining any future U.S. visas.
  4. Employer Sanctions: Employers involved in the collusion could face sanctions, including fines, debarment from the H-1B program, and other legal consequences.
  5. Immigration Consequences: Attempting to deceive the immigration authorities can have serious consequences on an individual's immigration status and future eligibility for other immigration benefits.
  6. Reputation Damage: Engaging in fraudulent activities can tarnish the individual's and employer's reputation within the U.S. immigration system.

It's essential to follow the U.S. immigration laws and regulations diligently and refrain from any fraudulent practices. If you need an H-1B visa, it's best to go through the proper legal channels and work with reputable employers and immigration attorneys.

H-1B Approval Notice for Terminated Employees:

A common question we receive is whether a terminated employee is entitled to the H-1B approval notice. Suppose an employer had filed an H-1B petition for consular processing with a start date of 10/01, but the employee subsequently quits, and the employer withdraws the LCA and H-1B petition by notifying USCIS. 

In that case, the employee can indeed obtain a copy of the H-1B approval notice from the employer. It is within the rights of the employee to request and receive this crucial document.  We hope these updates provide valuable information and clarity on the recent developments in H-1B visa processing and I-9 verification. As always, if you have any questions or concerns, don't hesitate to reach out to us. Stay informed and compliant with the latest immigration regulations.

Options for Nonimmigrant Workers on (E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, or TN classifications and their dependents)  Following Termination of Employment:

Losing a job can be a daunting experience for anyone, but for nonimmigrant workers in the United States, the situation can be even more complex. Many nonimmigrant workers may not be aware of the options available to them following the termination of their employment, leading them to believe they have no choice but to leave the country within a strict 60-day timeframe.

However, there are several avenues that these workers can explore to extend their stay in the United States, depending on their eligibility and circumstances.

File an Application for a Change of Nonimmigrant Status: Nonimmigrant workers who have lost their jobs can consider applying for a change of nonimmigrant status such as H-4, F-2, B-2 or F-1 with Day One CPT. This option allows them to switch to a different nonimmigrant visa category. It is crucial to ensure that the application is filed before the expiration of the 60-day grace period to avoid potential issues with their immigration status. 

File an Application for Adjustment of Status: If a nonimmigrant worker is eligible for lawful permanent resident status (green card) based on a family or employment-based petition, they may be able to file an adjustment of status application. This process allows them to transition from a nonimmigrant status to permanent residency, granting them the right to live and work in the U.S. indefinitely. However, this option requires the worker to have a valid visa petition and a current priority date. 

File an application for a "Compelling Circumstances" Employment Authorization Document (EAD): For certain nonimmigrant workers who are beneficiaries of approved employment-based immigrant visa petitions and face compelling circumstances, there is an option to apply for a temporary employment authorization document (EAD). This measure aims to assist individuals caught in expanding backlogs for immigrant visas, enabling them to continue working in the U.S. until their immigrant visa becomes available. This option is available for specific visa categories such as E-3, H-1B, H-1B1, L-1, or O-1 nonimmigrant statuses, and their qualifying dependents. 

There are two categories under this option:  Category (c)(35) is for principal beneficiaries of approved Form I-140s who are applying for an initial grant of employment authorization based on "compelling circumstances," or a renewal of such authorization.

Category (c)(36) is for qualifying dependent spouses and children of a principal beneficiary granted employment authorization under category (c)(35).

USCIS may grant employment authorization and issue an Employment Authorization Document (EAD) in these categories for up to one year if compelling circumstances are determined. 

Regarding the "Compelling Circumstances" EAD, it offers temporary relief for individuals stuck in the visa backlog; however, it has its limitations. The EAD obtained through compelling circumstances might not be convertible to an Adjustment of Status once the priority date becomes current. In such cases, the individual may need to request their employer to file an I-824 to process the green card at the U.S. embassy or consulate. 

Be the Beneficiary of a Nonfrivolous Petition to Change Employer: Nonimmigrant workers who have lost their jobs but find a new employer willing to sponsor them can have their new employer file a nonfrivolous petition to change their employer. This process enables them to continue working in the U.S. under their new employer's sponsorship. It's important to note that taking one of these actions within the 60-day grace period allows the nonimmigrant worker to extend their authorized stay in the United States beyond the 60-day limit, even if they lose their previous nonimmigrant status.

However, failing to take any action within the grace period may necessitate departure from the U.S. within 60 days or when their authorized validity period ends, whichever is shorter. 

In conclusion, nonimmigrant workers facing termination of employment in the United States should be aware that they have various options to consider, depending on their eligibility and specific circumstances. Seeking legal counsel or guidance from immigration experts can be beneficial to navigate the complex process and make informed decisions about the best course of action for their individual situation. Being proactive and taking timely steps can significantly impact their ability to continue their stay in the United States legally.

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