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E-Verify new interface in late March: All E-Verify Cases With A Final Case Result Should Be Closed

Washington, D.C. On March 14,  2018 U.S. Citizenship and Immigration Services (USCIS) announced that E-Verify will transfer all case data to a new interface later this month. To assist in the transition USCIS required all open cases must reach a final case result and be closed.

Open cases that have not been accessed for more than 365 days will be closed by E-Verify, but will remain accessible to employers as completed or historical cases. Cases that have received a final result (Employment Authorized, Final Non-Confirmation) will be closed but will remain accessible to employers as completed or historical cases. Users are encouraged to complete and close their cases prior to the deployment date.

Open cases that are not completed, but were accessed within the last 365 days will remain open for the employer to continue processing.

Final Case Results

To complete the E-Verify process, a case must receive a final case result and then you must close it. E-Verify guides you through the process after you receive a final case result. The four possible final case results:

  • Employment Authorized – The employee’s information matched DHS and/or SSA records.
  • DHS or SSA Final Non-Confirmation – E-Verify cannot verify an employee’s employment eligibility after the employee visited SSA or contacted DHS.
  • DHS No Show – The employee did not contact DHS within the required eight federal government workdays.
  • Error: Close case and resubmit – This case cannot continue because the expiration date entered for the employee’s U.S. passport, passport card or driver’s license is incorrect. This case must be resubmitted in E-Verify.

For more information, USCIS advises to learn how to properly close a case in E-Verify, pages 17-19 of the E-Verify Quick Reference Guide for Employers (PDF, 610 KB)E-Verify User Manual 4.04.1 Close Case4.2 Case Alert; and 4.1.1 Case Closure statements


If you want to learn more about E-Verify Program and about out legal services do contact us at (+1) 888 820 4430 (toll free), or (+1) 202 600 7745, or email us at contact@adhikarilaw.com

USCIS Policy Memo Provides Guidance on Contracts and Itinerary Requirements for H-1B Petitions

Washington, DC. USCIS has published a Policy Memo on Contracts and Itineraries Requirements for H-1B making clear that USCIS may request detailed documentation to ensure a legitimate employer-employee relationship is maintained while an employee is working at a third-party worksite.

USCIS clarifies existing regulatory requirements relating to H-1B petitions filed for workers who will be employed at one or more third-party worksites. This policy memorandum makes clear that employers must provide contracts and itineraries for employees who will work at a third-party location.

The guidance, effective Feb. 22, 2018, explains that, in order for an H-1B petition involving a third-party worksite to be approved, the petitioner must show by a preponderance of evidence that, among other things:

  • The beneficiary will be employed in a specialty occupation; and
  • The employer will maintain an employer-employee relationship with the beneficiary for the duration of the requested validity period.

When H-1B beneficiaries are placed at third-party worksites, petitioners must demonstrate that they have specific and non-speculative qualifying assignments in a specialty occupation for that beneficiary for the entire time requested on the petition. While an H-1B petition may be approved for up to three years, USCIS will, in its discretion, generally limit the approval period to the length of time demonstrated that the beneficiary will be placed in non-speculative work and during which the petitioner will maintain the requisite employer-employee relationship.

Contracts as evidence to demonstrate the beneficiary will be employed in a specialty occupation

When a beneficiary will be placed at one or more third-party worksites, the petitioner must demonstrate that it has specific and non-speculative qualifying assignments in a specialty occupation for the beneficiary for the entire time requested on the petition. The petitioner will need to show that:

  • The petitioner has a specific work assignment in place for the beneficiary;
  • The petition is properly supported by a Labor Condition Application (LCA) that corresponds to such work; and
  • The actual work to be performed by the H-1B beneficiary will be in a specialty occupation based on the work requirements imposed by the end-client who uses the beneficiary’s services.

In addition to contracts between the petitioner and its client for that worksite, the petitioner may be able to demonstrate that the beneficiary has actual work assignment(s) in a specialty occupation by providing a combination of the following or similar types of evidence:

  • Evidence of actual work assignments, which may include technical documentation, milestone tables, marketing analysis, cost-benefit analysis, brochures, and funding documents.
  • Copies of relevant, signed contractual agreements between the petitioner and all other companies involved in the beneficiary’s placement, if the petitioner has not directly contracted with the third-party worksite.
  • Copies of detailed statements of work or work orders signed by an authorized official of the ultimate end-client company where the work will actually be performed by the beneficiary. The statement should detail the specialized duties the beneficiary will perform, the qualifications that are required to perform the job duties, the duration of the job, and the hours to be worked.
  • A letter signed by an authorized official of each ultimate end-client company where the beneficiary will actually work. The letter should provide information, such as a detailed description of the specialized duties the beneficiary will perform, the qualifications required to perform those duties, the duration of the job, salary or wages paid, hours worked, benefits, a detailed description of who will supervise the beneficiary and the beneficiary’s duties, and any other related evidence.

Itinerary as evidence to demonstrate the beneficiary will be employed in a specialty occupation

In instances when a beneficiary will be placed at one or more third-party worksites, the petitioner must demonstrate that it has specific and non-speculative qualifying assignments in a specialty occupation for the beneficiary for the entire time requested on the petition. Although the regulations only require that an itinerary contain the dates and locations of the services to be provided when the petition requires the beneficiary to work at multiple worksites, a more detailed itinerary can help to demonstrate that the petitioner has nonspeculative employment, even when the beneficiary will only be working at one third-party worksite. For instance, it could help USCIS determine whether there are specific and nonspeculative qualifying assignments if the petitioner submits a complete itinerary of services or engagements that specifies:

  • The dates of each service or engagement;
  • The names and addresses of the ultimate employer(s); The names, addresses (including floor, suite, and office) and telephone numbers of the locations where the services will be performed for the period of time requested; and
  • Corroborating evidence for all of the above.

 

The updated policy guidance cites President Trump’s Buy American and Hire American Executive Order. Some legal experts have argued that this Executive Order may be against international trade and WTO rules, and this is a protectionist policy of current administration.


Note: This is a blog post by Adhikari Law PLLC and should NOT be construed as a legal advice. 

If you want to learn more about this topic or immigration law questions, or about our legal services do contact us at (+1) 888 820 4430 (toll free), or (+1) 202 600 7745, or email us at info@adhikarilaw.com

PLAN EARLY TO MEET FY 2019 H-1B NUMERICAL CAP TO FILE PETITION IN APRIL 2018

ADHIKARI LAW, Washington, DC.  U.S. employers and H-1B beneficiaries should be aware that USCIS will begin accepting H-1B petitions on April 2, 2018 and through April 6th, 2018 under Fiscal Year (FY) 2019 numerical cap. If the petition is approved the H-1B beneficiary can start working on October 1, 2018 or earlier if he/she is eligible for H-1B cap-gap. It is important to start the H-1B sponsorship process well in advance to complete the pre-filing preparations including filing the Labor Condition Application (LCA) to Department of Labor. These pre-filing preparations may last for eight (8) days since the LCA certification itself takes at least 7 days out of those 8 days.

FY 2019 H-1B Cap and Cap Amounts
Last year, USCIS received more petitions than the available H-1B numerical cap (U.S. Master’s Cap 20,000 and regular cap 65,000), therefore, all the petitions had to go through a computer-generated random selection process (so called lottery) to select the petitions to allocate the statutory quota for FY 2018. After the numerical cap was allocated to the selected petitions USCIS returned those petitions which were not selected in lottery. The current annual cap on the H-1B category is 65,000, and out this up to 6,800 visas can be set aside each fiscal year for the H-1B1 program under the U.S.-Chile and U.S.-Singapore Free Trade Agreements. Unused numbers in this pool are made available for H-1B specialty occupation workers for the next fiscal year.
There is a high likelihood that USCIS may receive large number of petitions in the first week of April itself than the available statutory cap for the FY 2019 H-1B quota too. Therefore, it is better to plan well in advance so that all H-1B petitions reaches USCIS within “five business days of the month of April“. However, before filing of the H-1B petition, the LCA has to be certified by Department of Labor which takes at least 8 days.
In the past several years, USCIS received far more number of H-1B petitions within the first five business days of the month of April for the U.S. Master’s Cap as well as regular cap than the available numerical quota, therefore, USCIS had to conduct the lottery.
USCIS will continue to accept H-1B petitions that are not subject to annual numerical limitations, (e.g. H-1B amended petitions, H-1B transfers, H-1B extensions for those individuals whose petitions have already been counted against the cap), DOD petitions and Chile/Singapore H-1B1 petitions requesting an employment start date in FY 2018.
Please note the following tips to ensure that your petition is filed timely:
  • Get all supporting documents ready (letters of support, end-client letter, necessary filing fees, etc.).
  • Before filing the H-B petition the employer has to receive a certified Labor Condition Application (LCA) from the Department of Labor (DOL). It typically takes about eight days for DOL to certify an LCA. So the LCA should be filed as soon as possible and least 8 days before fourth business day of the month of April.
  • Evidence of Beneficiary’s Educational Qualifications:
    • A copy of beneficiary’s final transcripts. Petition has to include evidence of the beneficiary’s educational degree at the time of filing.  If all of the requirements for the degree have been met, but the degree has not yet been awarded, the following alternate evidence may be submitted:
      • A copy of the beneficiary’s transcript and a letter from the Registrar confirming that all of the degree requirements have been met (if the educational institution does not have a Registrar, such letter must be signed by the person in charge of the educational records where the degree will be awarded)
  •  If you are indicating that the beneficiary is qualified based on a combination of education and experience, we would have to include substantiating evidence to show that through work experience letters.
  • ​If the beneficiary has only the foreign academic degree, if the the education is not related to the occupation, or has insufficient educational background then we will have to either the academic equivalency evaluation report or a work-experience evaluation report to satisfy the minimum education or experience requirement. This process can take 1-5 days.

Published, January 29, 2018.


If you want to learn more about Cap Subject H-1B or about our legal services for the preparation and the filing H-1B petition do contact us at (+1) 888 820 4430 (toll free), or (+1) 202 600 7745, or email us at contact@adhikarilaw.com

E-Verify Requirement for NEW Federal Contractors and subcontractors

Federal contractors and subcontractors with the E-Verify Federal Acquisition Regulation (FAR) requirement must enroll in and use E-Verify. Beginning Jan. 5, 2018, new federal contractors and subcontractors with a FAR requirement must provide their Data Universal Numbering System (DUNS) during the E-Verify enrollment process. Existing E-Verify employers designated as federal contractors with a FAR requirement do not have to provide their DUNS number, but will be prompted to enter it in E-Verify when they update their company profile. To learn more about enrolling in E-Verify, use the E-Verify enrollment checklist and view the enrollment video.

Earlier we had published a detail blog post about E-verify for federal contractors, Notice to DHS Contractors and Subcontractors on Compliance with E-Verify.

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If you want to learn more about E-Verify program or need our legal services for the compliance with e-Verify and I-9 do contact us at (+1) 202 496 1295 or (+1) 888 820 4430 (toll free), or email us at contact@adhikarilaw.com

Impacts of Government Shutdown on mobility and visa matters

Washington, DC.  Due to a failure to pass a relevant funding bill (government budget), a shutdown of the United States federal government began at 12 am EST on Saturday, January 20, 2018. Federal government’s operations will vary by agency, and “non-essential operations” of impacted agencies will be closed because of the shutdown. Following are impacts of government shutdown on immigration matters:

We will be closely monitoring the legislative developments and updates from U.S. Senate and House of Representatives about impending shutdown.


For learning more about  this topic do contact our attorneys at (+1) 202 496 1295 or (+1) 888 820 4430 (toll free), or email us at contact@adhikarilaw.com 

 

The Hill: Tech trade groups push Trump to allow H1B spouses work

The Hill: A coalition of major Washington, D.C., trade associations representing technology and other industries is urging the Department of Homeland Security (DHS) to preserve visas that allow spouses of H1B high-skilled workers to also be employed in the U.S. “Individuals looking to obtain H-4 authorization already legally reside in the United States and are on the path to permanent residency. They are also eager to work in order to support their families, contribute to their communities by paying taxes, and utilize their skills to help the U.S. economy grow,” the groups wrote in a letter to Lee Francis Cissna, director of U.S. Citizenship and Immigration Services (USCIS), a component of DHS.

“It is a function of the failure to reform our nation’s immigration system that this group of H-4 spouses — the majority of whom are women — continue to face uncertainty and may be prevented from working while they wait for bureaucratic backlogs to be cleared,” they continued.

Signatories on the letter spearheaded by the Information Technology Industry Council include Silicon Valley-backed immigration advocacy group Fwd.us and other technology trade associations like BSA and TechNet as well the National Association of Manufacturers and the Chamber of Commerce. (more here)

Texas Service Center to Begin Processing Form I-129 for L Visas and Vermont Service Center will no longer process L visa petitions

February 12, 2018, Washington, D.C. The Texas Service Center (TSC) of USCIS will begin processing certain Form I-129, Petition for a Nonimmigrant Worker petitions for L nonimmigrant classification, also known as L visas. The TSC will share this workload with the California Service Center to balance workloads and to provide flexibility as USCIS works towards improving processing times and efficiency.

The Vermont Service Center will no longer process any new Form I‑129 petitions requesting L nonimmigrant classification. Petitioners requesting an L nonimmigrant classification should file their Form I-129 at the address indicated on the Direct Filing Addresses for Form I-129, Petition for a Nonimmigrant Worker page.

Starting March 12, 2018, USCIS may reject any of these applications that are filed at the wrong service center.

Skilled workers and employers should not be alarmed by McClatchy DC’s report that DHS weighs major change to H-1B foreign tech worker visa program

By citing unnamed sources McClatchy DC reports that the Department of Homeland Security (DHS) weighs major change to H-1B foreign tech worker visa program. DHS is considering new regulations that would prevent H-1B visa extensions, according to two U.S. sources briefed on the proposal. The measure potentially could stop hundreds of thousands of foreign workers from keeping their H-1B visas while their green card applications are pending. The proposal, being drafted in memos shared between DHS department heads, is part of President Donald Trump’s “Buy American, Hire American” initiative promised during the 2016 campaign.

Skilled workers and employers should NOT be alarmed by the news report because an executive order or rule adopted by the government cannot re-write a Congressional Act. Executive order can regulate activities within purview of Executive Branch under the constitution, and it could adopt rules based on legal authority from particular Congressional Act(s). The H-1B extensions beyond six years are based on specific Congressional Act, Pub. L. 106-313 American Competitiveness in the Twenty-first Century Act of 2000_(“AC 21”), therefore, it is very unlikely that the government will seek to pursue such an executive action or a rule making as reported by McClatchy DC. Even if the government adopts such a regulation, it still has to pass the muster under the constitution and applicable statutes. It is also likely that such a regulation or executive action may be challenged at the court of law.

It should be also noted that the Congress has the exclusive constitutional authority to regulate U.S. immigration, the executive branch enforces the immigration laws passed by Congress.

Under the Immigration and Nationality Act (INA), there are several provisions which state “Attorney General (now Secretary of DHS pursuant to Homeland Security Act of 2002) may”. This basically means DHS makes a decision on case by case basis and it does not mean that the DHS has the discretion and it could deny the extensions without lawful grounds. For the purpose of extensions beyond 7th years, the Section 104(c) of AC 21 is applicable which states:

“(c) ONE-TIME PROTECTION UNDER PER COUNTRY CEILING- Notwithstanding section 214(g)(4) of the Immigration and
Nationality Act (8 U.S.C. 1184(g)(4)), any alien who–

(1) is the beneficiary of a petition filed under section 204(a) of that Act for a preference status under paragraph (1), (2), or (3)
section 203(b) of that Act; and
(2) is eligible to be granted that status but for application of the per country limitations applicable to immigrants under those
paragraphs, may apply for, and the Attorney General may grant, an extension of such nonimmigrant status until the alien’s
application for adjustment of status has been processed and a decision made thereon.”

The above statutory provisions means that  such an immigrant “may apply” for an extension, therefore, Attorney General too “may grant” such an extension until the alien’s application for adjustment of status has been processed and a decision made thereon. In other words if the alien chooses to apply for an extension then the Attorney General may grant an extension if the following elements are met:

  1. the alien is the beneficiary of a petition filed under Section 204(a) of INA (EB1, EB2 or EB3);
  2. the alien is eligible to be granted that status (i.e. employment-based EB1, EB2 or Eb3 immigrant status) but for per country limitation. (eligibility to apply for immigration visa is based on priority date as published in the Visa Bulletin)

This means the alien has to affirmatively prove above facts with documentary evidence, therefore, the extension is not automatic and the Attorney General will still examine those evidence to ascertain that the alien meets the criteria for extension under AC 21. Therefore, H-1B petitioners often submit copy of I-140 approval notice, copy of passport, and the latest visa bulletin for the H-B extensions based on Section 104(c) of AC21.

While the executive branch may be able to cause some temporary disruption, it cannot adopt executive actions or rules that contravene the statutes promulgated by the legislative branch. Therefore, while employers using the H-1B visa should continue to watch for potential changes to immigration laws, they should not be concerned that their current H-1B employees will be denied extensions beyond 6 years.

 


For learning more about  this topic do contact our attorneys at (+1) 202 496 1295 or (+1) 888 820 4430 (toll free), or email us at contact@adhikarilaw.com instead of falling for unsubstantiated news reports. 

Trump administration may “potentially” end H-4 EAD

On February 25, 2015, DHS had published a final rule extending eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants who are seeking employment-based lawful permanent resident (LPR) status.  DHS is proposing to remove from its regulations certain H-4 spouses of H-1B nonimmigrants as a class of aliens eligible for employment authorization.

RegInfo.gov is a United States Government website produced by the Office of Management and Budget (OMB) and the General Services Administration (GSA).