H-1B SERIES PART TWO: WHEN DO H-1B EMPLOYERS’ SALARY OBLIGATIONS BEGIN ?

H-1B Series Part Two: When do H-1B employers’ salary obligations begin ?

An employer must pay wages on the date that an H-1B employee enters into employment with the employer.  An H-1B employee “enters into employment” when the employee makes himself available for work or otherwise comes under the control of the employer, such as by waiting for an assignment, reporting for orientation or training, going to an interview or meeting with a customer, or studying for a licensing examination, and includes all activities thereafter. 

An H-1B worker is automatically deemed to have entered into employment 30 days after he enters the United States, or 60 days after H-1B approval if he is already in the United States.

The H-1B employee in Dedios met with clients “interviewing” with a potential client of the H-1B employer.  The DOL correctly found that this constituted “entering into employment,” in spite of the fact that the work with the end-client never materialized.

H-1B SERIES PART ONE: WHO CAN PAY H-1B FILING FEES AND PROFESSIONAL FEES ?

H-1B SERIES PART ONE: WHO CAN PAY H-1B FILING FEES AND PROFESSIONAL FEES ?

The H-1B regulations prohibit an employer from receiving, or the employee from paying, the filing fee for the visa. 20 C.F.R. §655.731(c)(10)(ii). H-1B employers must also pay certain other “business expenses” that are connected to the H-1B program.

In Dedios, the court found that the H-1B employee’s payment of legal fees, USCIS filing fees, and educational evaluation fees were all “business expenses” connected to the H-1B program.  Therefore when the H-1B employer required the H-1B employee to make these payments, the H-1B employer violated law.

In limited circumstances H-1B employees can pay for some costs that may be related to an H-1B employee’s employment.  These circumstances are found at 20 CFR 655.731(c)(9)(iii).  

DOL CASE HIGHLIGHTS ALL ASPECTS OF H-1B EMPLOYER LIABILITY

A recent Department of Labor decision, DeDios v. Medical Dynamic Systems, Inc., is a great primer on how employers and attorneys should treat H-1B employee salary obligations.  The case highlights several key issues: when does an H-1B employer’s salary obligation begin, when does it end, whether an employee may pay the H-1B filing and professional fees, and how to treat “benching”.

MU Law is using the DeDios case for a series on H-1B employer wage obligations.  We have also updated our “Top 10 things employers should keep in mind in order to stay compliant with the H‐1B visa process”.  If you would like a copy of the Top 10, please let us know.

The series will run over the next few blog posts.

UPDATES ON THE VISA BULLETIN

AILA recently published its May “Check-In with Charlie”.  The Check-In is a Q&A with the Department of State’s Chief of the Visa Control and Reporting Division.  Charlie is ultimately the person responsible for the publication of each month’s Visa Bulletin.  This month’s Check-In provided these insights into the Visa Bulletin for Beneficiaries of the most common employment-based immigrant visas.

India.  The EB-2 date will only advance slowly for the remainder of the US Fiscal Year, i.e. until October 1, 2016.  The EB-3 date will also move slowly for the rest of this fiscal year.

China. EB-2 China has a more favorable date than EB-3 China.  This is expected to remain in place for the remainder of the fiscal year.  Since China EB-2 is now more favorable than China EB-3, it is expected that EB-3 “downgrades” will end.

USCIS PUBLISHES PROPOSED FILING FEE INCREASE

On May 4, 2016, the USCIS published a proposed rule that will increase filing fees by an average of 21 percent.   The proposed fees for most business immigration filings are in the table, below.  The above-link will lead the reader to the full list of proposed increases. 

USCIS is taking public comments through July 5, 2016.  They last raised their fees in 2010.  USCIS fees basically pay for the entire USCIS budget.  Very little of the USCIS’ budget comes from federal tax dollars.

Proposed fees

Form	Current Fee	Proposed Increase	Change
I-129	$325	$460	+$135
I-130	$420	$535	+$115
I-140	$580	$700	+$120
I-485	$1,070	$1,225	+$155
I-539	$290	$370	+$80
I-765	$385	$410	+$30

JUNE 2016 VISA BULLETIN: ANALYSIS AND PREDICTIONS

The Department of State has just issued the June 2016 Visa Bulletin.  This is the ninth Visa Bulletin of Fiscal Year 2016. 

June 2016 Visa Bulletin

Final Action Dates

Applications with these dates may be approved for their Green Card (Permanent Residency card).

Employment- Based	All Chargeability Areas Except Those Listed	CHINA - mainland born	INDIA	MEXICO	PHILIPPINES
1st	C	C	C	C	C
2nd	C	01JAN10	01OCT04	C	C
3rd	15FEB16	01JAN10	22SEP04	15FEB16	01NOV08

MU Law Analysis

All Other:  The EB-2 has been current for many years.  The EB-3 remains at Feb 15, 2016, just as it was last month.  These dates continue to be very favorable.  We expect that All Other dates will continue to be positive for the foreseeable future.

China: Both Chinese categories retrogressed, reflecting greater demand.  The DOS predicted that EB-3 would retrogress in a note to last month's visa bulletin.

India:  EB-3 moved ahead a few weeks.  But the EB-2 retrogressed by four years.  We expect the India EB-2 to stay in 2004 until the October 2016 Visa Bulletin at which time it should steadily move forward.

Mexico: Mirrors All Other in all aspects.

Philippines: EB-3 moved ahead three more months. MU Law believes that Philippines EB-3 will continue to steadily move forward in the coming months. We expect it to move into 2009 in the by early summer, and may reach 2010 by the end of this fiscal year.

Dates of Filing

Applications with these priority dates should see their Consular Process application progress.  The USCIS may allow filing of the I-485 Adjustment of Status, provided that the USCIS issues its monthly authorization. 

Employment- Based	All Chargeability Areas Except Those Listed	CHINA- mainland born	INDIA	MEXICO	PHILIPPINES
1st	C	C	C	C	C
2nd	C	01JUN13	01JUL09	C	C
3rd	C	01MAY15	01JUL05	C	01JAN10

MU Law Analysis

These dates did not change from the prior Visa Bulletin. 

USCIS ISSUES NEW OPT STEM EXTENSION PROGRAM

On March 11, 2016 the USCIS published the rules of a new, expanded STEM Extension OPT program.  The new STEM Extension will go into effect Tuesday, May 10, 2016.  Among other changes, the program extends the length of the STEM Extension from 17 months to 24 months and that students are now permitted an aggregate of 170 days of unemployment for OPT and the STEM Extension period.  For more information, please visit https://studyinthestates.dhs.gov/

EMPLOYER REQUIREMENTS

The new STEM Extension Program requires more from employers.  To employ a student under the new STEM Program, employers must:

1. Be an E-Verify employer.  This remains unchanged from the previous STEM Extension Program.
2. Pay the student a wage commensurate to similarly situated US workers.  The calculation of this wage should be documented in the student’s employment record.
3. Employ the OPT student for at least 20 hours per week in a position that is directly related to the student’s degree.
4. Report any material changes in the student’s employment to the appropriate school official.  Material changes include: a change in the student’s hours, compensation, worksite, supervisor, or changes to the corporate structure.  Employers must also report a termination or resignation of employment to the school official within 5 business days.
5. Be subject to site visits by USCIS Officers to verify the student’s employment.
6. Complete and comply with a training plan for the student’s employment.  See below for additional details about the training plan.

TRAINING PLAN

The STEM Extension Training Plan has four components:

1. Describe the student’s role.  List specific tasks, give time frames and goals, describe the phases of the student’s training.
2. Identify the goals and objectives of the training.  State specific skills, techniques, or knowledge the student will gain while employed and describe projects or assignments where the student will use these skills.
3. Detail the employer’s oversight of the student.  State the frequency with which the student will meet with his/her supervisor.  Detail how the supervisor will review or sign off on the student’s work and describe any existing training programs in place.
4. Define the measures and assessments by which the student will be evaluated.  Detail how the student’s progress will be tested.  Note any new technologies or skills which will be learned and keep a journal of or regular reviews of student’s work.

Employer’s Certification 

Form I-983, the Training Plan for STEM OPT Students is available in draft form but has not yet been finalized by the Immigration Service.  By signing the training plan, the employer confirms:

1. Employment is directly related to the student’s degree and achieves the objectives of the training program;
2. Student will receive supervision and training by experienced staff;
3. Employer has sufficient resources and personnel to provide training to the student;
4. The OPT student is not replacing a full- or part-time, temporary or permanent US Worker.  The terms and conditions of the student’s employment are commensurate with similarly situated US Workers at the company.
5. The training complies with all applicable federal and state requirements related to employment.

TRANSITION RULES

There are three primary groups of students impacted by the implementation of the new STEM Extension Program:

1.  Students on a 17 month STEM Extension.

• These students with 150 days of time left on their OPT can apply for an additional 7 months of OPT, giving them the full 24 months of STEM OPT.
• These 7 month requests must be filed between May 10 and August 8.  The request requires a new I-20, I-765, and filing fee.
• If the student elects not to ask for the 7 month extension, the student completes the STEM OPT Period under the old rules.

2. Students with a pending STEM Extension on May 10, 2016.

• The new rules apply to the STEM extension request.  These students should expect an RFE to be issued requesting a training plan and other new requirements. 
• By responding to the RFE the student amends the STEM OPT to the full 24 month period without filing a new request.

3.  Students on a 12 month OPT.

• If the OPT expires before May 10, the student should file for the 17 month STEM Extension and expect an RFE (as outlined in #2 above).
• If the OPT expires after May 10, the student should file by June 1 under either STEM Extension Program - the 17 month or 24 month.
• If the OPT expires after June 1, the student must file the STEM Extension under the 24 month program.

PROPOSED H-2C LAW WOULD ALLOW QUICK VISAS FOR NURSES, OTHER NON-H-1B OCCUPATIONS

Sen. Flake’s bill, the Willing Workers and Willing Employers Act of 2016, will allow workers who work in Job Zones 1 through 3 to perform year-round non-agricultural work in the United States.

Job Zones 1-3 generally are those positions that require less than a bachelor’s degree, such as registered nurses, licensed practical nurses, physical therapy assistants, occupational therapy assistants, caregivers, and other similar allied health professionals.

Sen. Flake’s bill includes many US worker protections, such as: 

• Sponsoring employers would have to pay a “Scarcity Recruitment Fee,” in addition to USCIS filing fees.  This fee is equal to 5 percent of the H-2C’s annual salary.
• The job must be in a full employment area, which is a county whose unemployment rate is 4.9 percent or less.
• Employers have to attest that there are no US workers being laid off as a result of the H-2C workers’ employment.
• Employers have to prove that they have actively recruited US workers for the position.
• Employers would have to participate in E-Verify.

The H-2C program would be active for 10 years.  It will have a flexible cap of 45,000 – 85,000 depending on demand.

H-2C visa holders would also be barred from bringing in any family members into the US.  However they would be able to file for permanent residency, at which time their family members can come to US.

Unfortunately, most pundits give Sen. Flake’s bill virtually no chance of passing.  While this bill is not perfect, it is good to see that there are some Republican Senators who still understand the value that immigration brings to the US.