Immigration in the News, Best Practices Lin Walker Immigration in the News, Best Practices Lin Walker

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

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