May 26, 2023 - Weekly Immigration News Update

Posted by Keshab R. Seadie | May 26, 2023 | 0 Comments

DOS Implements Measures to Expedite Visa Processing

The DOS has implemented new technology and improved coordination to reduce the number of visa applications that require administrative processing on security grounds. Since October 2022, the majority of cases that previously required additional administrative processing (221g) have been resolved immediately, resulting in more efficient visa processing times. These advancements ensure that national security is upheld while streamlining the visa application process.

USCIS Allows Issuance of Student Visas Up to 365 Days in Advance

In February 2023, the DOS announced that consular officers can now issue F or M student visas up to 365 days prior to an international student's program start date. This update does not affect the requirements for issuing Forms I-20 or the process for paying the I-901 SEVIS Fee. It is important to note that students can only enter the United States up to 30 days before the program start date listed on their Form I-20. Attempting to enter earlier may result in inadmissibility.

To ensure a smooth entry into the United States, students and school officials should verify the following prior to arrival at a U.S. port of entry:

  • Active I-901 SEVIS Fee payment on the Form I-20 being used for travel.
  • Matching school names on the Form I-20 and the visa.
  • Up-to-date student financial information in SEVIS.
  • Arrival within 30 days of the Program Start Date.

Increase in Student and Exchange Visitor Visa Fee

The DOS has published a final rule announcing an increase in certain nonimmigrant visa application processing fees, including student and exchange visitor visa fees (F, M, and J). Starting May 30, 2023, the cost for student and exchange visitor visas will be $185, up from $160. Please refer to the DOS press release for further details on the Final Rule on Nonimmigrant Visa Fee Increases.

Guidelines for H-1B Workers Working from Home

In light of USCIS regulations and adjudication practices, it is important to adhere to the following advice for H-1B workers who will be working from home:

  • If an employee will regularly work from home but also be required to work at an employer- or client-owned facility, both the employee's home address and the worksite should be disclosed on the Labor Condition Application (LCA) and H-1B petition (Page 5, Part 5 of I-129 form).
  • If an employee is initially expected to work at the employer's or a client's worksite but later allowed to regularly work from home within normal commuting distance, no amended H-1B petition is required.
  • If an employee allowed to work from home moves within normal commuting distance of the initial worksite(s) listed on the LCA and H-1B petition, no amended H-1B petition is necessary.
  • If an employee allowed to work from home moves beyond normal commuting distance from all worksites listed on the initial LCA and H-1B petition, the employer must file a new LCA and an amended H-1B petition to reflect the new address.

Please note that if an H-1B employee relocates within the United States and the prevailing wage is higher in the new location, the employer must increase the H-1B worker's wage accordingly when filing the required amended H-1B petition.

For further information and compliance guidance regarding home office-based H-1B and LCA, please call our Law Office at 212-571-6002.

OFLC Extends Deadline for Submitting Revised PERM and CW-1 Forms in FLAG  

As of May 23, 2023, a notice has been added to the PERM system, which can only be viewed by users logged into their PERM accounts. The notice states:
IMPORTANT NOTE: Effective May 31, 2023, 7:00 PM Eastern Standard Time, the Office of Foreign Labor Certification (OFLC) will no longer accept the previous version of Form ETA-9089 electronically or through non-electronic methods such as mail, email, or fax. From 6:59 PM on May 31, 2023, onwards, all new versions of Form ETA-9089 must be submitted electronically in the FLAG system. Alternatively, they can be sent by mail with a postmark date of June 1, 2023, or later.
This announcement provides clarity on the revised PERM and CW-1 forms submission process, emphasizing the importance of electronic submission through the FLAG system. It is essential for employers to adhere to the new guidelines and ensure that any new Form ETA-9089 submissions are made electronically in FLAG or via mail with the appropriate postmark date.  

Multiple Biometrics Notices Issue Resolved by USCIS

USCIS acknowledged that it had a technical problem with the appointment system during biometric scheduling. This update ensures that USCIS maintains consistency in biometrics processes and addresses the technical issue that led to multiple biometrics notices being sent out. USCIS will work towards enhancing the National Appointment Scheduling System (NASS) to better accommodate the submission of multiple form types and eliminate the need for biometric cloning in the future. They have issued a response clarifying the matter: The current biometrics request template uploaded to the National Appointment Scheduling System (NASS) only allows for two form types, not three.
USCIS has identified this limitation and submitted a request for a change or modification. For applicants with pending ancillary applications such as Form I-485, Form I-131, and Form I-765, the two forms submitted are the I-485 and the I-765, as these are present in every case. Some applicants also request Advanced Parole via Form I-131. In such cases, biometrics are often cloned from the I-485/I-765 to the I-131. It's important to note that cloning biometrics does not create another biometric appointment request; it simply copies the biometrics that were already captured from the I-485/I-765 to the I-131.  
During a recent discussion about changes to the National Appointment Scheduling System (NASS), the NASS business owner suggested that USCIS should upload a biometrics request for the I-131s and allow the system to automatically downgrade and clone the biometrics for those I-131s where biometrics had previously been captured. This would be done to send notices to cases where biometrics had not been previously captured. USCIS implemented this on 4/21/2023 and found that most cases received an appointment notice. However, USCIS has now halted this process and reverted to only cloning previously captured biometrics from the applicants' I-485/I-765 to their I-131 for cases involving I-131 Advanced Parole. This will continue until changes are made to the National Appointment Scheduling System (NASS) to allow for the submission of all three form types together from the beginning, eliminating the need for biometric cloning.  

H-1B and LCA Audit: Understanding the Role of DOL Wage and Hour in Determining Employers and Dependent Employers

This article aims to provide valuable information regarding H-1B employers and H-1B-dependent employers under the H-1B program, highlighting the perspectives of both the United States Citizenship and Immigration Services (USCIS) and the Department of Labor (DOL) Wage and Hour Division.
Definition of an H-1B Employer:  
An H-1B employer refers to any entity, including individuals, firms, corporations, contractors, or other associations or organizations, that files a Labor Condition Application (LCA) (Forms ETA 9035 and/or ETA 9035E) with the Department of Labor's Employment and Training Administration. Additionally, they must file a Petition for a Nonimmigrant Worker (Forms I-129/I-129W) on behalf of an H-1B nonimmigrant with the USCIS. This definition applies universally, irrespective of whether the H-1B employer is considered H-1B-dependent (refer to WH Fact Sheet #62C).  
Alternative Definition of an Employer:  The Immigration and Nationality Act introduces an alternative definition of an employer specifically for determining H-1B dependency status. According to this definition, an employer is an entity or multiple entities treated as a "single employer" under the Internal Revenue Code. This includes "controlled groups of corporations," "partnerships, proprietorships, etc., under common control," and "affiliated service groups."  United States Employer Defined in 8 CFR Part 214.2 (h):  Title 8 of the Code of Federal Regulations (8 CFR), Part 214.2 (h), defines a United States employer as a person, firm, corporation, contractor, or other association or organization within the United States that: Engages individuals to work within the United States. Has an employer-employee relationship, demonstrated by the authority to hire, pay, terminate, supervise, or control the work of such employees and possesses an Internal Revenue Service Tax identification number. 
It is crucial to note that the Code explicitly states that the employer-employee relationship is determined based on the employer's authority to hire, fire, supervise, or control the work of the employee.  Role of USCIS and Common Law Principles:  USCIS also considers common law principles, such as the conventional master-servant relationship, which emphasizes various factors to assess the "totality of the circumstances." USCIS determines the validity of an employer-employee relationship by examining the petitioner's right of control over the beneficiary and the scope of their work.  
LCA Filing During Corporate Entity Changes:  In general, if an H-1B employer undergoes a corporate entity change, a new LCA is not required, provided that the successor entity agrees in writing to assume the obligations and liabilities of the predecessor entity under the existing LCA. The successor entity must comply with the conditions stipulated in the LCA, including wage requirements, place(s) of employment, strike/lockout notifications, exempt H-1B workers (refer to WH Fact Sheet #62Q), and dependency status. Any new paperwork filed with the DOL or USCIS must reflect the legal name of the successor entity.  However, a successor entity must file a new LCA in the following scenarios:  The H-1B worker is assigned to a different occupation than originally adjudicated by USCIS. The H-1B worker is placed at a job site not covered by the existing LCA. All the aforementioned requirements can be found in 20 CFR § 655 Subparts H & I and the Immigration and Nationality Act § 212(n).  
Understanding H-1B-Dependent Employers:  This section provides general information about H-1B-dependent employers within the H-1B program. An employer is considered H-1B-dependent if:  They have 25 or fewer full-time equivalent employees and employ at least eight H-1B nonimmigrant workers. They have 26-50 full-time equivalent employees and employ at least 13 H-1B nonimmigrant workers. They have 51 or more full-time equivalent employees, of whom 15% or more are H-1B nonimmigrant workers. Determining Dependency Status:  An employer must determine whether they are H-1B-dependent when filing:  A Labor Condition Application (LCA) A Petition for a Nonimmigrant Worker (Forms I-129/I-129W) based on an LCA A request for an extension of H-1B status for a nonimmigrant worker based on an LCA. Employers with apparent H-1B-dependent status need not calculate their dependency status.  
Calculating Dependency Status:  For employers with non-apparent or borderline H-1B dependency, a "snap-shot" test can be used for initial comparison. This test involves comparing the total number of H-1B workers to the total workforce (including H-1B workers). If a small employer's snap-shot calculation indicates dependency, a comprehensive calculation must be performed. Large employers must fully calculate their dependency status if the percentage of H-1B workers exceeds 15% of their total workforce.  
Determining Dependency for Employers Using the Internal Revenue Code (IRC) "Single Employer" Definition:  Employers classified as IRC "single employers" should follow the snap-shot test and/or full calculation (if applicable) as described above to determine their H-1B dependency. It is important to note that the DOL Wage and Hour Division will not penalize employers for failing to perform the snap-shot test if all entities constituting the single employer are readily determined to have non-dependent status. However, this enforcement policy does not affect the right of aggrieved parties to challenge an employer's failure to perform the snap-shot test. 
Please note that the information provided here is intended for general reference and should not substitute legal advice. For specific cases or further clarification, it is advisable to consult Law Offices of Keshab Raj Seadie, P.C. for professional legal guidance.

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