U.S. Judge Blocks Public Charge Rule Against Green Card Applicants Nationwide

A U.S. District judge in Illinois has completely rejected the Public Charge rule that denies permanent residency to immigrants who might need public assistance in the form of food stamps, and housing benefits at any point in the future. The federal judge, in his ruling has ordered the Trump administration to vacate the policy in its entirety and said the Public Charge rule will not be applied to anyone in the whole of U.S., effective immediately.

Come as good news to all family-based U.S. green card petitioners, USCIS officers nationwide will not be adjudicating US green cards based on the ‘wealth test’ administered on family-based green card applicants and will proceed without applying the public charge standard.

The rule was instated to filter out applicants unable to remain financially self-sufficient without having to depend upon State benefits while in the United States.

Read: What Constitutes The Wealth Test For Green Card Applicants

Reasons Why The Public Charge Rule Will Not Be Applicable Anymore

According to the U.S. federal judge in Illinois, the following reasons were cited to strike down the Public Charge rule in its entirety and applicable nationwide:

• The rule violates the Administrative Procedure Act which includes a detailed process for developing and enacting new regulations;
• The ‘wealth test’ is arbitrary and capricious with no basis in its own statue;
• The public charge rule does not consider the “predictable collateral consequences” of its implementation. This was in line with the Coronavirus pandemic, at which point the courts had stayed the execution of this rule;
• The rule is discriminatory against non-white immigrants under the equal protection clause;
• The rule as a whole exceeds the authority of the executive branch.

Related: Why The Courts Had Rescinded The Public Charge Rule Earlier

History Of The Public Charge Rule

• September 2019: This policy was announced 
• February 2020: The Public Charge rule goes live 
• April 2020: The U.S. Supreme Court upholds the rule despite Covid-19 pandemic 
• August 2020: A federal judge rescinds the Public charge rule
• September 2020: DHS resumes implementing wealth test on immigrants
• November 2020: U.S. federal judge vacates the rule in its entirety.

Once the U.S. presidential elections are over today, the decision could be challenged in the highest court in the United States. Stay tuned to this space for the latest updates.

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Higher Wages, Specialty Occupation, Client-Site Placements: New Rules For H1-B Visa Announced

In a continuing effort to stem the import and growth of foreign workers within the US labor market, the US government branches of the Department of Labor (DOL) together with the Department of Homeland Security (DHS) and the United States Citizenship and Immigration Services (USCIS) have released new regulations that will severely impact the H1-B visa program. These include higher, prohibitive wages to be offered by H1-B sponsoring employers, redefining specialty occupation and harder regulations against third-party placements. 

The US President has signed and passed a Bill towards Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States that is submitted and published in the Office of the Federal Register (OFR) as an Interim Final Rule with no opportunity for public comment.

Increased Wages

Effective immediately, the DOL has amended prevailing wage levels determined during the adjudication of the permanent labor certifications and Labor Condition Applications. This means that higher wages will prevail for all occupations levels.

• A significant increase in wages will mean Level I (beginning level) employees will now have to get Level III (advanced, fully competent) wages to qualify for an h1-B visa. While it might sound great for those beneficiaries who do qualify, employers will have to reclassify job positions and will be deterred from the extra expense.
• A similar hike is applied to green card applicant’s salaries. Employers will be discouraged to pursue permanent residency for its employees, if this is the mandatory salary to be issued.
• Lastly, for all pending labor condition applications (LSAs) that were filed prior to today, October, 8, 2020 pending prevailing wage requests will be issued using the new wage data.

Specialty Occupation Redefined

“Specialty occupation” is defined by to have a theoretical and practical application of a body of “highly specialized knowledge,” and a bachelor’s or higher degree in the specific specialty, or its equivalent, as a minimum for entry into the occupation in the U.S. 

• USCIS has redefined the meaning of specialty occupation to mean there should be a direct connection between the required degree and the responsibilities of the work-role.
• There should be a specialization (majored in a specific subject) in the coursework as opposed to a ‘general’ degree in for example, engineering or MBA. This can be applied to multiple degrees.
• USCIS require that a bachelor’s degree in a specific field must ALWAYS be required to meet the specialty occupation criteria.

Related Article: Will Computer Programmers Stop Qualifying For H1-B?

As a result of this redefinition, some positions that have previously qualified for an H-1B visa may no longer be eligible. This will negatively impact H1-B visa renewals and extensions. 

Client-Site Placements

• For all employees being placed in third-party sites called client office locations, will have their H1-B petitions approved only for 1 year.
• USCIS will exercise more scrutiny over the employee/employer relationship to include supervision of the employee, his job duties and its benefits to the sponsoring employer. 
• Required documentation: Master services agreement, work orders, client letters and project-related documentation.
• Increased site visits by USCIS officers to randomly inspect the legitimacy of each foreign worker at a client site.

Related Article:  How To Be Prepared For A USCIS Officer Visit At Your Client Site

While the wage hike goes into effect immediately, the enforcement of employer-employee relationship and redefinition of specialty occupation will be implemented by December 7, 2020. If this goes into litigation, it might get delayed, else all affected parties should consider extensions and amendments wherever applicable.

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Updated: USCIS Offers Leniency in Responding To Notices – How Will This Affect Your Petition

Update: Similar to the 60-day extension offered for Requests for Evidence and Notices of Intent to Deny, USCIS announced that it would give certain petitioners the additional 60-days to respond to other categories of notices as well. These apply to notices received between March 1, 2020 and January 1, 2021.

These 60 days is in addition to the date mentioned in the notice. USCIS had announced a closure of all its in-person service at its field offices and Application Service Centers due to the Coronavirus outbreak. Subsequent to this, it is also offering flexibility in responding to certain notices sent out by USCIS.

READ: Petition to Extend H1-B 60-Day Grace Period

Which Notices Have the 60-Day Grace Period to Respond

• Requests for Evidence (RFE);
• Notices of Intent to Deny (NOID);
• Notices of Intent to Revoke (NOIR);
• Continuations to Request Evidence (N-14);
• Notices of Intent to Rescind and Notices of Intent to Terminate regional investment centers; and
• Filing date requirements for Form I-290B, Notice of Appeal or Motion.

How should you respond effectively to an RFE?

Here’s How

RFE Response

What Does This 60-Day Extension Mean?

For applicants and petitioners who have received the above notices between March 1 and January 1, 2021, USCIS will accept their responses within 60 calendar days after the response due date set in the request or notice before taking action.

The new response deadline will be automatically calculated by adding 60 calendar days to the date mentioned in the USCIS notice. For example, if USCIS notice asks for a response by August 30, 2020, you have until October 30, 2020 to respond. 

Who Is Impacted by This 60-Day Extension?

H1-B, L1-A, L1-B, H4 EAD visa holders, Family-based Green Card petitioners	RFE
Visa petitions, work permits, adjustment of status applicants	NOID
Immigrant and non-immigrant visa petitioners	NOIR
Petitioners Applying for US Naturalizations	Continuations to Request Evidence (N-14)
EB-5 applicants and H4 EAD workers	Notices of Intent to Rescind and Notices of Intent to Terminate regional investment centers
Applicants of Form I-140, Immigrant Petition for Alien Worker and F1, student visa holders	Filing date requirements for Form I-290B, Notice of Appeal or Motion

Important to Know

While USCIS continues to offer flexibility, and help minimize the immigration consequences for those seeking immigration benefits during the pandemic, it is important that all petitioners consult their legal immigration counsel when responding to these notices. 

• Inspite of the flexibility offered, all petitioners and their legal representatives should be prompt in preparing and responding to these notices. The sooner you respond the faster you get an adjudication.
• Some deadlines might supersede the ones offered by USCIS in their latest announcement. Every respondent should have a legal expert review the notice for fine print to see the exact deadline applicable to each notice.
• In certain circumstances, I-94s and certain work visas could expire before the extended deadlines to respond. It is important to know how to react in these cases.

Is your visitor visa expiring and you are unable to leave the country?

Here’s a step-by-step guide to extend your US Visa

US Visa Extension Process

• The 60-day grace period should not be exploited by applicants. This is to take into consideration some inabilities posed by restrictions of the Coronavirus pandemic. Be prepared to explain the delay in responding if you have to.

The USCIS offices restarted in-person services on June 4, 2020. Stay tuned to this space to see what other changes USCIS will announce.

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Covid-19: Remote Working Norms For H1-B Visa Holders – What You Should Know For FY 2021

As the Covid-19 lockdown continues in majority of the US states, working from home continues to be the norm in most workplaces. This is also true for employers that employ foreign skilled workers. However, foreign workers on non-immigrant visas like H1-B, H4 EAD and L1-A have the additional burden of requiring their worksite location be within the said boundaries of the Labor Condition Application (LCA). Any changes to this could jeopardize their visa status in the US.

Related Read: LCAs and PERM Under Scrutiny, Per US President’s Executive Order

The Department of Labor (DOL) regulates that an H-1B sponsoring employer must submit a certified LCA for the location at which the H-1B employee will be working. Because of the social distancing norms established by individual states, many of these foreign workers are having to work remotely from home. Does this put them out of status?

If You Are Working Remotely On H1-B Visa

October 1, 2020 marks the beginning of the new fiscal year 2021. Several newly received H1-B petitioners are expected to join work with their employers in the US. However, social distancing norms will make them work remotely from home. As long as their work location is within the same metropolitan statistical area (MSA), as the employee’s normal worksite location then he may continue to work under a valid visa status.

Complying With Form I-9 For New H1-B Employees Working Remotely

According to the Department of Homeland Security (DHS) for employers maintaining social distancing due to COVID-19, employees will be exempted from having their identity and employment authorization documents reviewed in the employee’s physical presence. This is a requirement associated with Employment Eligibility Verification (Form I-9).

However, employers must inspect the Section 2 documents remotely (e.g., over video link, fax or email, etc.), and obtain and retain copies of the documents, within three business days for purposes of completing Section 2.

Steps To Take If The Work Location Is Within The Original Intended Area of Employment.

• The DOL does not need you to file a new LCA.
• A copy of the current LCA notice should be posted at the employee’s home for ten consecutive business days.
• This should be done within 30 calendar days after the worker begins work at the new worksite location.
• Once the LCA is posted for that duration, it must be added to the Public Access File when taken down.

Steps To Take If The Work Location Is Outside The Original Intended Area of Employment.

• For new H1-B visa holders coming for the new FY 2021 in October, employer should post either electronically or with a hard copy at worksite location a notice informing US workers that a foreign worker is joining.
• If the H-1B employee’s worksite location changes or becomes remote as in the case of the pandemic, a new LCA must be filed with the DOL & USCIS.

Related Read: When Should You File An Amended H1-B Petition

• The new LCA should cover the new worksite at which place H-1B workers intend work as well as details of why the change was required. 
• In addition, an amended H-1B petition must be filed with USCIS to include the new location.
• If the remote work location is for under 60 days in a calendar year, the DOL allows an exception and the employer doesn’t have to file for a new LCA as long as the employer is able to show that the H-1B nonimmigrant maintains ties to the home worksite.

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USCIS Relaxes Employment Verification For H4 EAD Job Seekers – Here’s The NEW Document List

Non-immigrant workers who have an approved Employment Authorization Document (EAD), can use their approval notice issued between Dec. 1, 2019 and Aug 20, 2020 in lieu of the printed EAD card. The EAD card (Form I-765) is required as proof of employment eligibility before joining work with an employer in the US.

USCIS made this adjustment to the rule of needing a list C document for Form I-9, Employment Eligibility Verification compliance until Dec. 1, 2020. This is until USCIS can catch up with the delays in printing of approved EAD cards that got delayed due to Coronavirus pandemic.

Read: Delay In Printing Green Cards & EADs 

For the past few months, several non-immigrant workers, including spouses of H-1B workers on H4 visas were unable to seek employment or continue in existing ones due to delays in getting printed work permits, even after getting approval. Going forward, and until December 1, 2020 USCIS announced that they can use the approval notice (Form I-797) for the Employment Authorization Document (Form I-765) as proof of employment eligibility.

What You Should Know About The Form I-9 Employment Verification

• The Form I-797 Notice of Action as proof of employment authorization under List C is also applicable to current employees who require re-verification.
• All H4 EAD employees who presented the Form I-797 Notice of Action as a List C document, will have to submit new evidence of employment authorization from either List A or List C.
• By Dec. 1, 2020, employers must re-verify these employees and seek a copy of the EAD card once the employee receives it.
• USCIS has now released a new, updated Form I-765 dated 8/25/2020.
• For EAD applications postmarked after Aug 25, 2020, USCIS will only accept the new addition of Aug 25,2020. This includes I-767 WS. 
• USCIS continues to accept the previous version of 12/26/19 if submitted before Aug 25, 2020 

USCIS Steps Up During The Pandemic

Offers leniency for the submission and response of some notices

USCIS Accepts Delayed Responses

Updated Document List For H4 EAD Employment Verification

While the Department of Homeland Security will now accept the EAD approval notice as evidence of employment authorization for Form I-9 compliance, the following list of documents also have to be submitted when an H4 EAD visa holder is seeking employment:

List A: Document establishing both Evidence of Identity &Employment Authorization

• US Passport
• Permanent resident card
• EAD Card
• Form I-797, Approval Notice for EAD
• Foreign passport with Form I-94 or Form I-94A with Arrival-Departure Record

 List B: Document establishing identity for Form I-9 employment verification

• Federal or state issued ID card
• Valid driver’s license
• For minors, & those without the above – School and/or doctor’s documentation

 List C: Documents establishing employment authorization (also attach a document from List B)

• Valid SSN card
• Birth Certificate
• US Citizen or Resident ID card

Others:

• Approved Form I-140 Immigration Petition for Alien Worker
• Marriage certificate or another secondary evidence of marriage to the primary beneficiary
• Copy of Form I-94 reflecting non-immigrant status
• Updated Form I-765, Application for EAD
• Secondary List of Support Documents

Applied For EAD?

Here’s how you can follow and expedite the processing times

Expedite H4 EAD

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