H-1B – Page 2 – Duane Morris Immigration Law

January 15, 2023January 18, 2023 by Valentine A. Brown

Options for H-1B Workers after Employment Termination

With recent layoffs in the tech industry, H-1B and other nonimmigrant workers may find themselves stranded in the US with no work and potentially no legal immigration status. USCIS has issued detailed information for these workers, explaining their options and some relief that may be available in certain circumstanes:

60-Day Grace Period: Regulations permit a discretionary grace period that allows workers in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, or TN classifications (and their dependents) to be considered as having maintained status following the cessation of employment for up to 60 consecutive calendar days or until the end of the authorized validity period, whichever is shorter. During this period, workers may be able to maintain their nonimmigrant status if a new employer timely files a petition on their behalf with an extension of stay request (e.g., an H-1B change of employer petition for a worker in H-1B status).

Portability: Portability rules permit workers currently in H-1B status to begin working for a new employer as soon as the employer properly files a new H-1B petition with USCIS, without waiting for the petition to be approved. Also, a worker with an adjustment of status application (Form I-485) that has been pending for at least 180 days with an underlying valid immigrant visa petition (Form I-140) has the ability to transfer the underlying immigrant visa petition to a new offer of employment in the same or similar occupational classification with the same or a new employer.

Change of Status and/or Employer: Workers may use the up to 60-day discretionary grace period to apply to change their nonimmigrant status, which may include changing status to become the dependent of a spouse (e.g., H-4, L-2). Some individuals in a dependent nonimmigrant status may be eligible for employment authorization incident to status, including spouses of E-1, E-2, E-3, or L-1 nonimmigrants.

There are other options available as well, depending upon individual circumstances. It is highly advisable for anyone who finds themself terminated from the employment that is underlying their nonimmigrant visa status to contact immigration counsel to review all of the legal options, and immigration consequences of the termination.

June 10, 2021January 18, 2023 by Valentine A. Brown

Good USCIS News: Policy Pronouncements Recognize Real-Life Customer Service Issues and try to Fix Them

New polices going into effect today will address application processing delays and their negative impacts on applicants, including loss of work authorization due to USCIS processing delays; delayed foreign national start dates due to USCIS adjudication delays and RFEs; and giving more applicants more opportunities to request that their applications be expedited.

Work Permit Validity Extended: from 1 year to 2 years for Adjustment of Status Applicants (Category C-09). This will greatly reduce the inconvenience or applying for new permits and job loss due to expiring permits; Continue reading “Good USCIS News: Policy Pronouncements Recognize Real-Life Customer Service Issues and try to Fix Them”

January 15, 2021 by Valentine A. Brown

Hiring and Immigration: Questions to Ask and Factors to Consider

Hiring season is fraught with questions and uncertainties; preparing employment applications; interviewing, drafting offer letters….. What questions can be asked? What questions should be asked? These concerns are even more pronounced when it comes to immigration status, and immigration sponsorship. Those tasked with the hiring process often ask, whether it is legal to ask applicants about their immigration status, how to ask that question, and even more important, “Do we have to sponsor for immigration status if the applicant needs it?”

Read the full post here:

January 14, 2021January 14, 2021 by Duane Morris

H-1B Lottery Selection Criteria May Change to Salary-Based Process

The Department of Homeland Security (DHS) has issued a new rule that transforms the random cap H-1B selection process to one that prioritizes registrations and petitions based on the highest Department of Labor (DOL) prevailing wage level met by the offered salary. It is not clear yet whether the incoming Biden administration will implement this rule at all or with modifications. Learn more in our recent client alert.

December 3, 2020 by Valentine A. Brown

H-1B Wage Rules Rescinded – Another Win for Employment-Based Immigration

A challenge brought by the U.S. Chamber of Commerce to the new H-1B wage levels and the new definition of “Specialty Occupation” was upheld by the United States District Court for the Northern District of California on December 1, 2020. The plaintiff’s Summary Judgement motion was granted when the Court held that the government failed to demonstrate good cause for not following the normal notice and comment procedures required for immigration regulations. The government’s failure to follow the proper rulemaking procedures makes the new rules invalid and requires them to be rescinded by the government. Continue reading “H-1B Wage Rules Rescinded – Another Win for Employment-Based Immigration”

August 28, 2020August 28, 2020 by Valentine A. Brown

USCIS gets flexible on I-9 Process, but Employers must stay Vigilant

The I-9 process continues to be the bane of HR existence. Recent accommodations for remote work environments, closed driver’s license agencies, and USCIS delays in printing work permits and green cards are definitely appreciated and helpful, but they also make the process more confusing. Employers are beginning to worry about how they will catch up on viewing all of the original documents they saw remotely during the pandemic, in the USCIS-designated 3-day time frame once their companies return to the office. Meanwhile, I-9 audits and worksite enforcement actions are continuing apace. While following all of the new guidance, employers must also be sure to stick to the basics. Continue reading “USCIS gets flexible on I-9 Process, but Employers must stay Vigilant”

March 29, 2020March 29, 2020 by Valentine A. Brown

COVID-19 Immigration Agency Suspensions and Cancellations 3/29/2020 Update

The Duane Morris Immigration Team is dedicated to providing the most up to date information and zealous advocacy on behalf of our clients during the COVID-19 emergency. Below we have compiled information from various U.S. agencies on all aspects of travel, USCIS appointments, ICE activities and Removal Proceedings. This post will be updated as changes develop. Duane Morris has developed a COVID-19 Strategy Team which is providing regular updates on all business and employment related matters impacted by the COVID -19 pandemic. A second webinar on Business Continuity Planning for a Pandemic will be held on Wednesday, March 18. To register, click here.

Topics Discussed Below

Continue reading “COVID-19 Immigration Agency Suspensions and Cancellations 3/29/2020 Update”

March 21, 2020March 21, 2020 by Valentine A. Brown

USCIS Suspends Premium Processing for all I-129s and I-140s

USCIS announced at 2:19 PM on 3/20/2020 that Premium Processing services for I-129 (E-1, E-2, H-1B, H-2B, H-3, L-1A, L-1B, LZ, O-1, O-2, P-1, P-1S, P-2, P-2S, P-3, P-3S, Q-1, R-1, TN-1 and TN-2.) and I-140 (EB-1, EB-2 and EB-3) is suspended temporarily. Like many of us, USCIS service center operations have gone remote, so it is impossible for the agency to keep up with the demand for premium processing of applications. Continue reading “USCIS Suspends Premium Processing for all I-129s and I-140s”

May 20, 2019May 20, 2019 by Duane Morris

Proposed First Step Toward Immigration Reform Announced by President

On May 16, 2019, the president announced a plan to reform the U.S. immigration system, with a focus on increased border security as well as a plan to replace the employment-based green card system with a points system modeled on immigration programs in other countries, including Canada and Australia.

While specific details of the plan have not been disclosed, it is to be a merit-based system that would assess permanent residence applicants on the basis of criteria that include age, skills, education level, offer of employment, job creation potential and wage level.

View the full Alert on the Duane Morris LLP website.

January 28, 2019January 27, 2019 by Valentine A. Brown

Premium Processing Resumes for FY2019 Cap Subject H-1B Petitions

By: Valentine Brown

On January 26, 2019, USCIS announced that Premium Processing will resume on January 28, 2019 for all cap-subject FY2019 H-1B petitions; in other words, for any H-1B lottery application filed last April that is still pending with the agency. But shouldn’t all of those petitions have already been approved? Well, um…. yes. But wasn’t the employment start for all of those petitions October 1, 2018? Another, Yes. In spite of these facts there are several thousand H-1B cap-subject petitions still un-adjudicated or waiting for a decision months after employers responded to USCIS requests for additional information. Better late than never, as the old adage goes.

The announcement means that employers who have any of those thousands of petitions still at the agency can upgrade them to premium processing and receive a decision or a request for additional information within 15 days. Employers who are currently compiling responses to requests for information can also submit their response with a premium processing upgrade and $1410 to obtain a decision on their petition within 15 days.

The USCIS announcement is only applicable to cap-subject FY2019 H-1B applications. Premium processing remains suspended for the following H-1B categories, at least until February 19, 2019.

H1B Extension Petitions that include changes to the original position
H1B Petitions where there is a change of employer
H1B Petitions that request amendments with changes to the original petition

The continued ban on premium processing, especially for petitions where there is a change of employer is burdensome to both employers and H-1B status holders. With current adjudications taking as long a six months and denial rates higher than ever, it is often too risky for an H-1B nonimmigrant to make an employer switch until the H-1B petition is approved, and for employers waiting six months or more for a new hire to start is untenable.

Premium processing continues to be available for H-1B cap exempt petitions filed by institutions of higher education, government research entities and some qualified non-profit organizations that file petitions at the California Service Center. It is also still available for H-1B extension petitions where there are no changes or amendments. These are applications that are filed with the Nebraska Service Center.

USCIS states that the agency will update the availability of premium processing for other categories once the workload of the agency permits. It is unclear whether the original deadline for the lifting of the premium processing ban of February 19, 2019 will be honored, or whether the ban will be further extended.