Notes from the AILA Annual Conference
The AILA Annual Conference (AC23) took place in Orlando, Florida from June 21 to June 24 and was a great learning opportunity, where some of the field’s most knowledgeable practitioners shared their experiences and insights.
Below, I’ve included a summary of some of the most important points that I learned.
Wednesday, June 21, 2023
Obtaining The Elusive NIV Consular Appointment and What to do Once You Get it
NIV intent does not mean that the FN must prove their intent to return to their home country, only that they intend to leave the U.S. It is important to keep this in mind if country conditions are challenging the FN’s home country because of natural disasters, war, political instability, etc.
TCN - usually eligible to apply wherever they are lawfully present – for example if a person from China is legally in London for tourism or business purposes, they should be able to apply for an L-1 or H-1B in London
Highly unlikely (and unrecommended by panel) to try to get a B-1/B-2 as a TCN
Some countries will absolutely not adjudicate TCNs (Panama and Mexico)
Wait times on DOS website do not reflect TCN wait times
Always prepare clients for consular interviews.
In most cases, consular officers will make up their minds in 3 minutes or less
Client should be able to explain all facets of their job in the U.S. and abroad and how they qualify for visa classification
Remote and Hybrid Workforce Issues and Trends
DOL most likely won’t issue FAQs for new PERM form until they start adjudicating them in about 10 months
Remote workforce
This is highly problematic where the FN has authority or prerogative to change location at will. Employer may need to file multiple amendments
PERM
Farmer memo is for “roving” employees or unanticipated worksites, not for “hybrid” or “remote” but it’s the best we’ve got
The new form - where do you address the telecommuting issue? Section FC, other geographic areas where work is performed. This is where panel is listing telecommuting issues and roving employees
What to do when a company has no HQ and all employees are remote/WFH?
Does NOF at registered address, shared workspace
If there is a change in the worksite for the job because PWD has been pending so long, what to do?
Need to do a PWD unless you can preserve the original worksite wherein the employer says that the FN will return to the worksite.
Thursday, June 22nd
Workshop Deep Dive in responding to H1B RFEs
USCIS is issuing RFEs for maintenance of status, where the FN has worked with OPT and then several rounds of CPT
RFEs where there is a change in work location (prior to filing LCA and amended petition)
Amended petition should be filed before work in new location (different MSA) begins
Employers need to keep track of where FN is working and living especially if remote work/WFH is permitted
Uptick in specialty occupation RFEs
Read RFE carefully especially if case law is cited because it is often misquoted
Labor Condition Application: More than meets the eye
The new SOC codes also include some new occupations, such as Project Management Specialist
Best Practice: Employers should consider creating and implementing a policy about foreign national employees moving without notice because there is the potential to trigger LCA violations as well as a failure to maintain status for those in H-1B, H-1B1 and E-3 status
If an FN works in a location not covered by an LCA, there is a status violation
Until the regulations are changed, where an FN works from home, the LCA needs to include the home address and the LCA must be posted at the FN’s home
Keep in mind that FDNS can show up at any address listed on the LCA, including the FN’s home address
Wage and hour violations
Fines and debarment are possible penalties for LCA violations but the DOL is issuing more debarments from the H-1B program now
Friday, June 23rd
Hot topics in compliance including form I-9
The new Form I-9 is on the horizon with a final rule that permits permanent virtual solution.
The new rule will come out in August
The new permanent virtual solution may not be available to all employers – there will be a lot of requirements to use this solution
Physical inspections of I-9 documents (for employees on-boarded virtually/remotely) must be completed by August 30th
Be careful using electronic I-9 systems — employers will be held responsible for violations caused by software
Outer continental shelf (OCS) workers do not need to do I-9s because the OCS is not subject to jurisdiction of the U.S. Even if the OCS worker is paid from U.S., the employer is not required to complete and I-9 for OCS employees
E-verify
Mandatory in certain circumstances: federal government/contractors, several States, and some jurisdictions within States. Even if an Employer has 1 employee in these jurisdictions (working remotely), the EMployer must use E-verify
E-Verify must be completed within same timeframe as the I-9
If the employee requires reverification, re-verify the I-9, but do not complete another e-Verify entry
Required to employ STEM OPT employees
DOL Open Forum
Work load data
PERM submissions remain very high, with more than 79,000 cases filed in the first half of 2023
23% more PWR for PERM cases filed in first the half of 2023
Workload doubled due to increase in H2A numbers
Temporary visas have been prioritized over PERM applications and have shifted analysts away from PERM cases
Submit questions about the new 9089 on the FLAG system and these will be turned into FAQs by the DOL
The more feedback that is provided, the more quickly DOL can resolve issues
For fields that require dates, but specific dates are not available, the DOL is working to amend PERM to allow an entry of “N/A”
Audit responses
Best Practice: choose one method, either mail or electronic, but do not submit responses using both methods.
The DOL prefers electronic submissions
9141 issues
H-1B prevailing wage can be linked to new PERM 9089
A PWD that expires on June 30th for linking with PERMs in July – the DOL is aware and will issue guidance
The DOL will issue guidance on linking multiple PWDs (where there are more than 2 sets of requirements) but if you come across this, email the FLAG help desk
PWDs are issued with an annual salary. You cannot list an hourly wage on the 9089 and must use the annual wage. However, the NOF can use the hourly wage so as long as it is equivalent to annual wage
With regard to determining whether the requirements exceed the SVP, the DOL uses ONET to determine what is normal to the occupation
Physical posting of the NOF is still required
Employers no longer need to register to create a PERM account and will no longer receive post-filing emails
No expedites available for prevailing wage requests or PERM adjudications
OFLC will change wages on July 1, 2023
Risky business: permissible and impermissible activities
It is permissible to manage your own investments while in the U.S. in B-1/B-2/ESTA status
Sometimes it is a good idea to have an FN who is eligible for ESTA or visa waiver apply for a B-1/B-2 visa if they travel to U.S. frequently or stay beyond 90 days
ESTA will be canceled permanently if the FN visits Iran, Iraq, Sudan, Syria, Libya, Somalia, and Yemen
B-1 in lieu of H-3 (admission for 1 year) and in lieu of H-1B (admission for usually 6 months)
The FAM says there is no such thing as a misrepresentation by silence
USCIS says the opposite – omission can be misrepresentation
Saturday, June 24th
Prevailing wage determinations
Virtual businesses are posing a problem – what address should be used as the company’s HQ? The DOL requires an address to be listed so that:
interested applicants may submit a resume for a job, and
there is a location for site visits.
The Farmer memo deals with “roving” employees and is not really meant for “remote” employees, but the DOL says it’s still valid. If you cannot anticipate where the employee will work at the time of filing, list the HQ and list all possible locations where the FN will work
The DOL is reluctant to issue a PWD with XX-XX99, all other occupations SOCs, especially for IT occupations. BALCA says these are legitimate, so if the DOL won’t issue a PWD using an “all other occupation” classification, you can challenge the determination and ask for reconsideration
Wage transparency laws: If a person can work remotely from anywhere in the US, you need to comply with wage transparency laws
With batch recruiting be careful that the lowest wage is the one that can be listed on the 9089
Mastering the complexities of PERM
There has to be a physical office where applicants can be referred and for the NOF to be posted.
100% virtual companies are highly problematic. If there is an audit the employer will most likely not be able to get the PERM approved
For worksite location selections on the PERM form, always pick “business premises” (not “employee’s home” even if the employee is working remotely).
The DOL admitted during the open forum that the people who created the new PERM application do not understand the regulations and do not prepare or adjudicate PERM applications as part of the normal job duties
This form was not Beta tested – we are doing the Beta testing by filing our PERM applications (which may be denied 10 months from now).
Audit triggers - section G - answering yes to any of these, you will need to explain in 1,500 characters or less. If explanation is sufficient, it will not cause an audit.
Panelist thinks you should answer yes to 9 if you have a JZ 7- 8 (e.g. software developer) and require bachelor’s and 5 years or master’s and 3 years. This is the business necessity issue.
The old question is below and you could get away with saying “yes”--that the job requirements were normal – if the requirements were the employer’s normal requirements you could say “yes”. But now, the question now is “do the requirements exceed teh SVP”?
Equal pay laws/salary transparency laws
Hawaii just signed bill - starts January 2024
Illinois - includes salary and all benefits - starts January 2024
No more PERM email confirmations for employers to respond to
The Impact of Relocating on U.S. Immigration Processes
As a result of the COVID-19 pandemic companies in nearly every industry switched to a remote or hybrid workforce, providing their employees with the flexibility and autonomy to move to various locations within the United States. Regardless of the reason for these relocations, it is very important for employers and their foreign national employees to consider the immigration consequences that may arise from moving.
The goal of this post is to provide foreign nationals and their employers with important issues to consider when moving and the impact that such a move might have. It can be an unwelcome surprise to foreign nationals and their employers when they realize the impact that moving, even within the same State, can have on their immigration status. To explain the importance of moving, we will provide two hypothetical situations below and the immigration consequences of each.
Hypothetical 1: A nonimmigrant with a pending I-485, Application to Adjust Status to Permanent Resident.
Emily is a nonimmigrant who has a pending I-140, Petition for Immigrant Worker (I-140 Petition), and a pending I-485, Application to Adjust Status to Permanent Resident (I-485 Application), which were concurrently filed in January 2023 based on her employment with ABC Co. When Emily’s I-140 Petition and I-485 Application were filed she was working remotely, from her home office. As listed on her I-140 Petition and I-485 Application, Emily resided in New York, NY.
In March 2023, U.S. Citizenship and Immigration Services (USCIS) mailed Emily an ASC Appointment Notice to have her biometrics (photograph and fingerprints) recorded at a local USCIS Application Support Center on April 11, 2023. Unbeknownst to ABC Co. or their immigration counsel, Emily had moved to Hoboken, NJ and never informed her employer or immigration counsel of her new address.
Although Emily had her mail forwarded from her old address in New York, NY to her new address in Hoboken, NJ, she never informed USCIS that she moved. She never received the original ASC Appointment Notice mailed to her directly from USCIS. In addition, even though ABC Co. and their immigration counsel emailed Emily a copy of the ASC Appointment Notice, she never read the email or opened the attachment.
On May 16, 2023, Emily received mail that was forwarded to her new address, including the ASC Appointment Notice and realized that she missed the appointment to have her biometrics recorded.
It is significant to note that forwarding mail is not sufficient for USCIS. Any nonimmigrant who moves is required to file a Form AR-11, Alien’s Change of Address Card, with USCIS within ten (10) days of the change of address. The requirement to file the AR-11 applies to all foreign nationals, whether they move to a different apartment within the same building or to a different city or State. A best practice is to also send a letter to USCIS, by certified mail return receipt, with a copy of the receipt notice for each pending petition or application to advise of the change of address.
What are the consequences of Emily missing the biometrics appointment for her I-485 Application? The failure to appear for the biometrics appointment, or to timely request (prior to the appointment date) that USCIS reschedule the appointment, will result in USCIS denying the I-485 Application as being abandoned. Although there have been some instances where the local ASC office will allow a foreign national to appear late to have their biometrics recorded, more often than not, USCIS will deny the I-485 Application as abandoned. Assuming the foreign national has otherwise maintained their status, this would require the foreign national to refile a new I-485 Application and be placed at the end of the queue for a greencard after having waited months or years to file.
Hypothetical 2: An H-1B nonimmigrant whose employer permits remote working
Dana is an H-1B nonimmigrant whose employer, XYZ Ltd., has implemented a work from home or remote working policy (WFH Policy) in response to the COVID-19 pandemic. XYZ Ltd., which is located in Morris County, NJ, initially implemented the WFH Policy as a temporary measure, but in December 2022, made it one of several permanent options for its employees.
Dana, who has been employed as an IT Project Manager with XYZ Ltd. for four years, has been working remotely since March 2020. Her current H-1B status expires on September 1, 2023 and she is currently earning an annual salary of $100,000. Now that she has the option of permanently WFH, she purchased a home in Fairfax County, VA on February 1, 2023. On March 15, 2023, while XYZ Ltd.’s immigration attorneys were preparing an extension of Dana’s H-1B status, she advised XYZ Ltd. that she had purchased a home in Fairfax County, VA and was seeking to move to her new home as of April 15, 2023.
What are the consequences to Dana’s H-1B status based on her planned relocation from Morris County, NJ to Fairfax County, VA? Changes in an H-1B nonimmigrant’s work location can have significant immigration consequences due to the U.S. employer’s requirement to meet the prevailing wage.
In order to file an H-1B petition, an employer must agree to pay the H-1B beneficiary at least the “required wage,” which is defined as the higher of the prevailing wage or the employer’s actual wage paid to similarly employed workers. A U.S. employer establishes its agreement to pay the required wage by filing and obtaining certification (or approval) of a Labor Condition Application (LCA).
The appropriate prevailing wage is determined by the geographical area of employment. The prevailing wage for Dana’s position of IT Project Manager in Morris County, NJ is $94,349 per year, while in Fairfax County, VA, the prevailing wage for an IT Project Manager is $121,722 per year.
By purchasing a home and planning to relocate without first consulting with XYZ Ltd. and its immigration counsel, Dana created an expensive dilemma for herself and her employer, which may jeopardize her ability to maintain her lawful nonimmigrant status. Under this scenario, XYZ Ltd. and Dana have several options.
First, assuming XYZ Ltd. agrees to file the H-1B extension for Dana to work in Fairfax County, VA, XYZ Ltd. must agree to pay her the prevailing wage, which is now $121,722 per year, more than a $21,000 increase over her current salary. While XYZ Ltd. has the option of purchasing a private wage survey as an alternative means of determining the prevailing wage, such private wage surveys can be quite expensive and there is no guarantee that the private wage survey will be accepted by either the Department of Labor or USCIS as sufficiently meeting the prevailing wage regulations.
Second, XYZ Ltd. may decide that it cannot or will not file an H-1B extension petition for Dana, which would place her lawful nonimmigrant status in jeopardy. If XYZ Ltd. determines that it cannot pay Dana $121,722 per year or that it cannot find a private wage survey as an alternative means of determining the prevailing wage, then XYZ Ltd. could decide not to file an H-1B extension on behalf of Dana and let her H-1B status expire.
Third, XYZ Ltd. could determine that it can only afford to extend Dana’s H-1B status if she continued working in Morris County, NJ, which would mean that Dana could not move to her new home in Fairfax, VA.
Fourth, Dana would have the option of transferring her H-1B employment to an employer who could pay the prevailing wage for her role as IT Project Manager in Fairfax, VA. This would require Dana to find a new employer who would be willing and able to sponsor her, pay the prevailing wage, and file the H-1B extension petition before her current status expired on September 1, 2023. While not impossible, the very short period of time with which Dana has to find a new employer, get hired and get the employer to file the petition on her behalf, makes it unlikely that this option would be successful.
As detailed from above, both Emily and Dana failed to communicate, with the employers and immigration counsel, a material change in their personal circumstances, which in turn had significant consequences, placing both in financial or immigration jeopardy. It is critical that foreign nationals always share a change in their address with their employer and immigration counsel. As the above hypotheticals show, relocating can have a significant impact on a foreign national’s immigration status.
Domestic Visa Revalidation Is Returning to the U.S.!
Before you get too excited, I want to point out two things: (1) the visa revalidation option will only apply, initially, to those seeking to renew H and L visas; and (2) the revalidation program will be launched later this year, but a definitive date has not been announced.
On February 9, 2023, Bloomberg Law published an article based on its interview with Julie Stufft, Deputy Assistant Secretary for Visa Services, Bureau of Consular Affairs, U.S. Department of State. Deputy Assistant Secretary Stufft confirmed that the Department of State would be launching the pilot domestic visa renewal program later this year, initially for foreign nationals seeking to extend their H and L visas, but could expand the program to include other visa classifications in the future.
This is good news of course! Immigration practitioners, U.S. employers and foreign nationals have been advocating for a domestic visa renewal process since the COVID-19 pandemic led to the shutdown of numerous U.S. embassies and consulates abroad. This in turn resulted in a significant backlog of pending visa applications, the unavailability of visa appointments, foreign national employees being stuck abroad for many months, and an interruption in work for U.S. employers.
However, the Department of State noted that one of the challenges in implementing the domestic visa renewal program is the difficulty in creating a new consular division in Washington, D.C.
Again, this is good news, but I can't help but wonder why a program that had already been in place for many years has taken so long to resurrect.
Domestic visa revalidation IS NOT new—the Department of State already operated a very popular and very successful visa revalidation program through its Consular Division in Washington, D.C. until 2004. The old visa revalidation program enabled foreign nationals in the United States in E, H, L and O nonimmigrant visa status, among others, to renew their visas through the Consular Division in Washington, D.C. This visa revalidation program ended in 2004 because the Department of State was unable to meet the biometrics data collection requirements created by new national security laws enacted after the September 11, 2001 terror attacks.
Although it may take several more months to be implemented, the new visa renewal program will be an important and welcomed benefit for many foreign nationals, their families and U.S. employers and we are happy to see it return.
I will continue to monitor the Department of State’s visa renewal program and will provide updates as soon as information becomes available.