UNITED STATES – Immigration Newsletter

In this edition

  • Final Rule Extending Work Authorization to H-4 Dependent Spouses Expected Soon
  • CBP Designates Preferred Ports of Entry for First-Time Canadian TN and L-1 Applicants
  • DOL Clarifies When an Employer’s LCA Wage Obligations Cease to Terminated Workers Who Obtain Subsequent Approved H-1B Employment


Final Rule Extending Work Authorization to H-4 Dependent Spouses Expected Soon

In his recent State of the Union address, President Obama made clear that he would veto efforts by the Republican-controlled Congress to undo some of the work that the administration has advanced on a number of pivotal issues. One issue that President Obama referenced by name was immigration. Specifically, the president suggested that he would defend his recent executive action on immigration, vowing that any effort to refight “past battles” would earn his veto.

With the implications from that pronouncement still fresh, now is a good time to revisit one of the features of President Obama’s executive action that has long been of keen interest to the business community, the extension of work authorization through the issuance of an Employment Authorization Document (EAD) to the spouses of H-1B visa holders. The proposed rule on “Employment Authorization for Certain H-4 Dependent Spouses” was published in the Federal Register on May 12, 2014. The official comment period for the proposed rule ended in July 2014, leaving expectations high that the final rule would be issued near the beginning of 2015. Jeh Charles Johnson, Secretary of the U.S. Department of Homeland Security (DHS), reinforced this expectation in a November 20, 2014 memorandum, in which he stated that U.S. Citizenship and Immigration Services (USCIS) was “about to publish the final rule.”

Who Will Be Affected

The proposed rule is intended to alleviate some of the personal and economic hardship experienced by the families of H-1B nonimmigrants and, in so doing, to indirectly aid employers hoping to retain their highly skilled workers during the H-1B employee’s often lengthy wait to acquire a green card-a process that can take years. Under the current rules, immediate family members of an H-1B visa holder are not eligible to work in the United States. The H-4 is a category of nonimmigrant visa issued to the spouses of H-1B visa holders or to their children who are under 21 years of age. Their inability to work can place an obvious strain on the family.

While the final rule has not yet been published, the outlines of the pending regulatory action have been public for a while. Barring any major shift precipitated by comments received on the proposed rule, the new policy is expected to focus specifically on H-4 visa holders whose H-1B spouse is already in the process of applying for a green card either by: (1) having received an approved Form I-140, Immigrant Petition for Alien Worker, or (2) having been granted an extension beyond their initial six-year H-1B period under the terms of the American Competitiveness in the Twenty-first Century Act of 2000 (AC21).

Under sections 106(a) and (b) of AC21, an H-1B visa holder may qualify for such an extension if, prior to reaching the end of the sixth year, he or she has a labor certification application or an employment-based immigrant petition that has been pending for at least 365 days. In other words, if the H-1B visa holder and his or her family have overcome the initial hurdles to obtain a green card, but are stuck in a backlog that is delaying their ability to complete an adjustment of status, the new rule would provide a bridge during which time the H-4 spouse could earn an income.

Anticipated Number of Applicants and Costs

The estimates provided by DHS in the proposed rule place the total number of H-4 applicants for the soon-to-be-available EAD at a maximum of 100,600 for the first year, with more than 35,000 potential new applicants added to those numbers in subsequent years. Each of these applicants would need to file a Form I-765 Application for Employment Authorization. The current I-765 filing fee is $380 per person, but associated costs related to obtaining the necessary passport-style photos to accompany the application and other opportunity costs from the time devoted to the application’s preparation could push the total actual cost to more than $400.

Apart from general eligibility requirements, there has been no indication that the total number of applicants permitted under the new rule would be subject to an annual cap.

Next Steps

As with other USCIS rules, specific guidance on the eligibility and application requirements for H-4 spouses who hope to obtain an EAD will be included in the final rule when it is published in the Federal Register. USCIS will likely issue a statement with relevant details to accompany the final rule’s official release.

We are continuing to monitor developments in this area, and will provide updates on the final rule and any procedural considerations as more information becomes available.

Alternatives

H-4 dependent spouses who do not wish to pursue an EAD under the new rule may still have other paths toward work authorization if they can independently qualify under another nonimmigrant visa category. For example, H-4 spouses with the necessary qualifications and an interested employer may obtain their own H-1B or O-1 nonimmigrant visa. Since these paths would have their own risks, costs, and waiting times, the new rule will probably be the preferred path to follow in most cases where the goal is simply to obtain work authorization.

CBP Designates Preferred Ports of Entry for First-Time Canadian TN and L-1 Applicants

U.S. Customs and Border Protection (CBP) is the agency charged with overseeing and facilitating international travel and trade across the borders of the United States. The CBP’s mandate includes responsibility over determining when a traveler, such as a returning U.S. citizen, lawful permanent resident, or an applicant for temporary nonimmigrant admission, may be allowed entry into the United States.

In a recent news release, CBP announced that it had designated 14 ports of entry located along the U.S./Canada border as the preferred processing stations for certain travelers seeking admission to the United States. The announcement concerns only Canadian nationals who seek first-time admission to the United States in either TN or L-1 nonimmigrant classifications under the North American Free Trade Agreement (NAFTA). The announcement is narrowly focused and does not apply to Canadians seeking admission to the United States in other classifications. Likewise, the announcement does not apply to persons of non-Canadian nationalities who seek admission to the United States.

Under NAFTA, qualified Canadian and Mexican citizens may be admitted into the United States in TN or L-1 nonimmigrant classifications for the purpose of engaging in productive employment activities. The TN classification permits qualified Canadian and Mexican professionals to seek temporary admission into the United States to work for a U.S. employer. NAFTA included an enumerated list of professional occupations eligible for TN classification, such as accountant, biochemist, computer systems analyst, economist, or engineer. The L-1 nonimmigrant classification can be used by a multinational company to transfer executives, managers, or certain critical specialized knowledge employees to its offices in the United States. For companies that do not yet have a U.S. presence, the L-1 classification can also be used to send executives or managers to the United States for the purpose of establishing an office and business operations in the United States.

In its announcement, CBP indicated that it had designated the preferred ports of entry for the purpose of “optimizing” processing for Canadian applicants who seek admission into the United States for the first time in TN or L-1 nonimmigrant classifications. The announcement does not provide additional information concerning why CBP has made this change. However, the list of 14 preferred ports of entry include CBP stations where officers routinely deal with high volumes of foreign travelers seeking admission into the United States. These CBP officers would possess a high level of experience reviewing applications for TN and L-1 classifications, and it appears that CBP is recommending first-time applicants to apply at one of the preferred ports of entry to help ensure consistent and fair adjudications.

  • Canadian Preclearance Locations
    • Lester B. Pearson International Airport, Toronto, Ontario, Canada
    • Trudeau International Airport, Dorval, Quebec, Canada
    • Vancouver International Airport, Richmond, British Columbia, Canada
    • Calgary International Airport, Calgary, Alberta, Canada
  • Vermont Locations
    • Highgate Springs Port of Entry, Highgate, Vermont
    • Derby Line Port of Entry, Derby Line, Vermont
  • New York Locations
    • Alexandria Bay Port of Entry, Alexandria Bay, New York
    • Peace Bridge Port of Entry, Buffalo, New York
    • Rainbow Bridge Port of Entry, Niagara Falls, New York
    • Champlain Port of Entry, Champlain, New York
  • Michigan Locations
    • Detroit Canada Tunnel Port of Entry, Detroit, Michigan
    • Detroit Ambassador Bridge, Port of Entry, Detroit, Michigan
  • Washington Location
    • Blaine Peace Arch Port of Entry, Blaine, Washington
  • Montana Location:
    • Sweetgrass Port of Entry, Sweetgrass, Montana.

Although the ports of entry listed above are now designated as preferred ports of entry, the CBP announcement verified that first-time applicants for TN or L-1 classifications are not prohibited from submitting their applications at one of the other non-preferred Class A ports of entry along the U.S./Canada border.

DOL Clarifies When an Employer’s LCA Wage Obligations Cease to Terminated Workers Who Obtain Subsequent Approved H-1B Employment

On December 22, 2014, the U.S. Department of Labor’s (DOL) Administrative Review Board (ARB) issued an important Final Order and Decision clarifying precisely when an H-1B employer’s Labor Condition Application (LCA) back pay obligations to a laid-off employee cease under the Immigration and Nationality Act (INA).

The issue decided in the case, which involved a prominent financial institution, was whether a subsequent employer’s approved H-1B petition filed on behalf of an individual who had been terminated effectively ended the obligation of the initial H-1B employer to pay back wages pursuant to a certified LCA because the subsequent approved petition itself establishes a bona fide termination of the employee. Notably, the ARB held that in cases involving multiple H-1B petitioners where the termination was clear to the former employee, the approved “new employment” or “change of employer” petition filed by a subsequent employer ended the wage obligations of the initial H-1B employer at the time the new petition was approved by U.S. Citizenship and Immigration Services (USCIS).

To ensure that employment of foreign workers does not adversely affect the U.S. workforce, H-1B employers are required to obtain a certified LCA from the DOL. In doing so, an H-1B employer attests that it will pay the professional foreign worker the higher of the prevailing wage or the actual wage paid to comparably employed U.S. workers in the same occupation and geographic area of employment. Generally speaking, for the duration of the approved H-1B employment, unless an employer takes steps to file a new LCA and materially amend the H-1B petition, the wage obligation is intended to guarantee payment for the entire period of employment authorized by the LCA, up to three years. Additionally, under the H-1B regulations an employer’s wage obligations to a nonproductive (i.e., laid-off) employee are designed to continue for the complete period of authorized employment, unless certain conditions are met to establish that a bona fide termination of the foreign national’s employment has occurred. These express statutory conditions include clearly informing the worker facing termination of employment, paying the costs of a return trip home, and notifying USCIS that the employer is terminating the employment of the H-1B beneficiary.

Furthermore, stringent reading of an earlier ARB case held that even though an employer acts in good faith making it abundantly clear that it is terminating an H-1B employee, unless it has also clearly met its statutory obligation of notifying USCIS, there remained a possibility that a bona fide termination of the employee had never occurred. Therefore, when combined with other factors, failure to properly notify USCIS by filing a formal withdrawal of the petition could subject an employer to potential liability for wages covering the entire term of the initially authorized employment under the certified LCA, regardless of when the layoff actually occurred and whether the employer had expressly notified the former employee and offered him or her the costs of a return trip home.

Specifically, in 2006 the ARB held in Amtel Group of Fla., Inc. v. Yongmahapakorn that if an employer clearly tells an employee that he or she is terminated but fails to meet both of the other regulatory requirements of paying for a return trip and notifying USCIS, then it has not effectuated a bona fide termination of employment and the former employee could be awarded back pay for the entire period of the H-1B approved petition.

Impact of Recent ARB Decision

Under the Board’s previous strict holding in Amtel, an employer was potentially liable for multiple years of back pay to a laid-off H-1B employee if the company failed to timely apprise USCIS of the worker’s termination. In the recent December ARB decision, by holding that a subsequent approved H-1B petition filed by another company effectively ends the LCA wage obligations of the initial H-1B employer, the DOL has to some degree narrowed the former employer’s scope of liability in certain situations even if it fails to properly notify USCIS.

The Board carefully distinguished the facts in its recent decision from the earlier holding in Amtel by looking at the complex circumstances surrounding H-1B petitions filed for a single beneficiary by more than one employer, as well as the actions of the employee who had been terminated. Perhaps most importantly for many companies that regularly file large numbers of H-1B petitions on behalf of portable employees, the ARB considered the “complexities that can arise in cases that involve multiple H-1B employers,” including whether subsequent employers would have sought approval of a “new employment” and/or a “change of employer” H-1B petition on behalf of a particular beneficiary. The Board held that a fundamental difference between a former employer and a current employer in such situations materially changes the analysis of what constitutes a bona fide termination of the beneficiary when more than one petitioning employer is involved. Essentially, the Board determined that when a subsequent employer’s petition was approved by USCIS in a manner that only legally permitted the beneficiary employee to work for the new petitioning company, the prior petitioning employer’s back pay wage obligations are cut off.

Not only does this determination provide some relief for employers that fail to notify USCIS of employee terminations, the DOL also candidly acknowledged the portability of H-1B employees among various modern businesses:

Thus, a strict reading of Amtel would suggest that each time an H-1B nonimmigrant ports to a new employer, the former employer would remain liable for back wages until it provides the nonimmigrant with the cost of return transportation. Instead, we think that back wage claims against a former employer must stop accruing if it is clear that the H-1B employee changes from one H-1B employer to another and USCIS approves the subsequent H-1B petition allowing for the change.

This important new distinction more accurately reflects the reality facing many employers that regularly hire portable H-1B employees, and to some extent employers are now protected by a subsequent company’s approved H-1B petition on behalf of an individual who has been terminated. Nevertheless, the burden remains with an H-1B employer facing layoffs to effectuate a bona fide termination by carefully meeting all their obligations-including clearly telling the employee facing termination, paying the reasonable costs of a return trip home, and notifying USCIS of termination of employment. In addition, while not strictly required by law to establish a bona fide termination, it would be prudent for employers to withdraw the certified LCA with the DOL to help cut off any potential back pay liability.