October brings seasonal reminders for employees who are starting employment pursuant to H-1B status as well as some current changes to employment-based permanent resident applicants. In addition, the White House has issued policy priorities that may have an impact on employers if implemented.
Cap-Subject Change of Status H-1B Petitions
October 1, 2017, marks the effective date of several important immigration events, including cap-subject H-1B change of status petitions and employment-based priority dates.
Beneficiaries of cap-subject H-1B petitions that were filed in April of this year as change-of-status petitions have several points to note as of October 1, 2017. October 1 is the date that such beneficiaries currently in a different nonimmigrant visa status in the U.S. — such as F-1, H-4, TN, etc. — and whose H-1B petitions were filed and approved by the U.S. Citizenship and Immigration Services (USCIS) as a change of status will automatically change status to H-1B on October 1. The H-1B employee can review the H-1B approval notice issued by USCIS to ensure that the petition was approved as a change of status and that the status becomes effective automatically on October 1, 2017. Those H-1B beneficiaries who were not approved as a change of status must travel outside the U.S., obtain an H-1B visa stamp in their passport and re-enter the U.S. to trigger H-1B status.
Employees whose status changed to H-1B automatically on October 1 should keep several things in mind. First, payroll withholdings may need to be updated. Keep in mind that F-1 students working pursuant to Optional Practical Training (OPT) or Curricular Practical Training (CPT) have likely not had FICA (Federal Insurance Contributions Act) taxes withheld from their pay. As of October 1, 2017, and the change to H-1B status, the H-1B employer will be required to withhold these FICA taxes (which include Medicare and Social Security).
Second, the H-1B employee’s Form I-9 needs to be updated with the company’s Human Resources department with the worker’s new duration of work authorization and I-94 number.
Third, if the H-1B employee plans to travel outside the U.S., the employee needs to make an appointment at a U.S. embassy or consulate to obtain an H-1B visa stamp in his or her passport. Be sure to check with the latest guidelines provided by the specific embassy regarding what documents to bring, what forms to complete and what fees to pay. It is also important to review processing times for scheduling visa appointments. For some consulates, specifically those in India at the current time, it is taking three months or more to schedule visa appointments. If the H-1B employee wants to travel home for the upcoming holidays, he or she needs to look into scheduling the visa appointment as soon as possible.
Finally, if there are any changes to the H-1B employee’s employment — including work location, title, duties or pay — these changes should be communicated as soon as possible before the change so that the employer and immigration counsel can determine how the change impacts the individual’s immigration status and whether it necessitates filing a new labor condition application (LCA) or amended H-1B petition. Keep in mind that a new LCA and an amended H-1B petition MUST be filed with USCIS if there is a job location change that is outside of the current area of intended employment covered by the prior H-1B paperwork. An amended petition for such a job location change must be filed with USCIS prior to the change in location.
Employment-Based I-485 Interviews
As noted in our September 6, 2017, legal update, USCIS announced that in-person interviews will now be required for all employment-based permanent residence applications. During a recent listening session, USCIS announced the following about the I-485 interview process for employment-based I-485 applications with an effective date of October 1:
- Interviews for employment-based I-485 applications will only be required for those I-485 application filed after March 6, 2017. These applications will be handled and finalized with an interview by the local USCIS office. Applications filed prior to March 6, 2017, will be handled by the USCIS Service Center where the application was filed.
- These interviews will apply to all types of I-140s (EB-1, EB-2, EB-3) for which the I-485 was filed.
- The National Benefits Center will pre-process these employment-based I-485 applications before sending to the local office for the interview.
- Every applicant (including all family members; interview waivers available for children under age 14) will receive an interview notice. The USCIS has signaled an effort to keep families together.
- USCIS office staff has been trained on I-140 and employment-based I-485 issues, including I-485 portability. USCIS expects more training and hiring as needed.
- USCIS expects the busiest offices for interviews to be San Jose, San Francisco, New York, Newark, New Jersey, Atlanta, Los Angeles, Houston and Chicago.
- Interview process is to ensure that all eligibility requirements have been satisfied.
Trump Administration’s Immigration Policy Priorities Could Affect Employers
On October 8, 2017, the White House issued an Executive Summary of the administration’s immigration policy priorities, which covered border security and interior enforcement and proposed a merit-based immigration system.
Congress has been tasked with finding a solution for the beneficiaries of the Deferred Action for Childhood Arrivals (DACA) program following President Trump’s announcement that the program would be rescinded as of March 5, 2018. President Trump informed Congress that his priorities “must be included as part of any legislation addressing” DACA. These recently announced priorities may prove challenging for legislators who want to work with the administration to find a solution for DACA beneficiaries, since many of the priorities are not favored by Democrats (including building a southern wall and reducing family-based immigration options).
Employers should take note of several issues that could impact business immigration should these priorities be implemented through notice and comment rulemaking or other legislation:
- Increased fees for employees seeking visas or traveling across borders.
- Higher risk for penalties for employees who inadvertently overstay their visas.
- Relatedly, possible increase in mistaken enforcement for employees who have timely filed to extend work authorization and status but are misunderstood by border agents or ICE.
- Mandatory use of E-Verify by all employers.
- Higher scrutiny at U.S. embassies and consulates abroad for employees applying for work-based visas.
- Limiting employment-based immigration on a points basis, a complete overhaul from the current employment-based immigration system.
Faegre Baker Daniels’ Immigration and Global Mobility team will provide more on these priority proposals as Congress reviews and considers immigration legislation for the rest of this year and into 2018.