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.