COVID-19, telework, and work visas

Calderin & Oliva, P.A.
info@calderinoliva.com

As result of COVID-19, our company has shifted to telework.  We employ H-1B and E-3 visa holders and they will no longer be working at the identified worksite location.  How will shifting these employees to telework affect our compliance with these programs?

As we all take part in the effort to “flatten the curve” and lessen the spread of the coronavirus (COVID-19), many companies have decided to implement procedures for telework.  This is also true for companies which reside in states where government authorities have instituted orders to “shelter in place.”

This new shift may affect those companies that have H-1B and E-3 visa holders on their payroll and may require a revision of the company’s compliance strategies to avoid possible fines and/or penalties.

The U.S. Department of Labor certifies the labor condition application which lists the identified worksite location where the H-1B or E-3 visa holder is permitted to work.  This identified worksite location is also listed on the H-1B or E-3 petition that is filed before the U.S. Citizenship and Immigration Services (USCIS).  That is, generally, work must be performed at the identified worksite location as a condition of employment of the H-1B or E-3 visa holder and any change of this worksite location, even for reasons beyond the employer’s control, may still result in non-compliance penalties for the employer company.

Two preliminary considerations to keep in mind depends on whether the new worksite location is in the same area of intended employment as the normal worksite location or if its in a different area.

On March 20, 2020, The DOL released answers to “frequently asked questions” confirming that when an H-1B or E-3 visa holder (employee) moves to a new, unintended worksite location (including the employee’s home address) that is within the same metropolitan statistical area ("MSA") of the intended worksite location, then the company (employer) is not required to file a new labor condition application with the DOL that lists the new, unintended worksite location. 

The company (employer), however, must provide an electronic or hard-copy posting notice at the new worksite location for 10-calendar days. Traditionally, the posting notice should have been provided before the H-1B or E-3 visa holder began working at the new worksite location.

Recognizing that as a result of COVID-19, many companies were forced into telework with very little to no notice to their employees, the DOL allows for the new notice to be provided “as soon as practical and no later than 30 calendar days after the worker begins work at the new worksite locations.”

By contrast, where the new, unintended worksite location is not within the same MSA of the intended worksite location, the company or employer may be required to file a new labor condition application.  For example, if the H-1B or E-3 visa holder will work in a different county than his or her regular worksite location for more than 30 or 60 days, then the company must file a new labor condition application along with an H-1B or E-3 amendment petition with USCIS before the 30 or 60-day period has elapsed. 

An exception may exist if, for example, the H-1B or E-3 visa holder is now working at the new worksite location for a period of less than 30 days, then the company may take advantage of the short-term placement rule for up to 30 days, or possibly 60 days provided other conditions are met.

The DOL in its FAQ’s states that a company and employer’s failure to file the H-1B or E-3 amendment within the 30 or 60-day period may result in DOL investigations and/or penalties for failing to comply with its existing regulations.

Penalties may include civil penalties of up to $7,846 per violation, the award of back wages plus interest being paid to the H-1B or E-3 visa holder, and the possibility of not being allowed by the DOL to use the H-1B program for a temporary period or time or permanently.

The above information is provided for information purposes. It should not be construed as legal advice or the formation of an attorney/client relationship.

This Makes Immigration Sense-Squared Part 2

By Carlos A. Calderin, Attorney
      Calderin & Oliva, P.A.
      info@calderinoliva.com

Two years ago on February 5, 2013, I wrote a post entitled This Makes Immigration Sense-Squared.  It was about an immigration proposal presented to the U.S. Congress called the Immigration Innovation Act of 2013 or the "I-Squared Act".  Unfortunately, Congress failed to take action on the bill at the time.  However, this week a group of bipartisan U.S. Senators, led by Republican Senators Hatch and Rubio, and Democrat Senators Coons and Klobuchar have reintroduced the I-Squared Act in Congress. 

I take this opportunity to repost large portions of the previous 2013 article where I explained the I-Squared Act and how its enactment could benefit the country.

In the September 5, 2012 post, entitled The Future of Immigration Reform, this blog described what consisted immigration reform. The post stated, "Immigration reform would transform people's lives forever. Immigration reform would strengthen our nation's economy and put it in a better position to compete globally."

The I-Squared Act, if approved, would be true immigration reform. The proposal would work to re-enforce the economic engine of the nation. In the November 9, 2012 post entitled, Immigration, Innovation, Stability and Confidence, this blog wrote:

One of the clearest examples of [the nation's innovation] deficiency is in the H-1B professional work visa program. The H-1B program is the mechanism by which U.S. companies can petition to bring into the country highly qualified professionals to work in such occupations as computer programmers, engineers and physicians. In 1999, the U.S. government had a yearly quota of 65,000 H-1B work visas. The U.S. Gross Domestic Product ("GDP") for that year was $11 trillion. The yearly quota of H-1B visas was then tripled to 195,000 for the next few years, until it returned to 65,000 visas in 2004. Yet, the U.S. GDP for 2004 stood at $12.39 trillion, a 12.6% increase since 1999. The H-1B visa program had not been allowed to continue to grow along with the U.S. economy. Even in light of what many call the Great Recession, the U.S. economy continues to grow overall. Yet, the H-1B program has not continued to develop to adapt to such growth. In 2005, another 20,000 visas were added to the H-1B program, which were reserved for individuals with an advanced degree from a U.S. institution of high education. However, this did little to mitigate the massive 67% drop in visas allocation the prior year. It is essential that the U.S. expand its H-1B program if it wishes to continue its economic dominance.

Senator Hatch and his co-sponsors understand this argument. Their I-Squared Act would increase the H-1B annual cap from 65,000 to 115,000. Furthermore, the proposed legislation would allow the cap to be connected to the needs of industry for the H-1Bs. The cap could be adjusted up or down each year based on economic demands. In Immigration, Innovation, Stability and Confidence, this blog wrote of a hypothetical "Company W" that was investing a vast majority of its resources in trying to develop a revolutionary product. Its prospect of being successful in its endeavor hinged on being able to employ three foreign students who had been working on a similar product. However, "Company W' was prevented from hiring the trio because the H-1B cap had been exhausted for the year, therefore putting the company's future in jeopardy. Under the I-Squared Act, this scenario would likely not occur. Under the proposed law, if the cap were hit in the first 45 days of H-1B petitions  being filed, an additional 20,000 H-1Bs would be made available immediately. If the cap were met in the first 60 days, then an additional 15,000 H-1Bs would then be available. Finally, if the cap were reached in the first 90 days or during the 185-day period ending on the 275th day on which petition may be filed, the cap would be raised 10,000 and 5,000, respectively. Likewise, the proposal sets up benchmarks for which the cap can be lowered if the yearly demand for H-1B were to drop.

 

Current law allows an additional 20,000 H-1B for individuals with an advanced degree from a U.S. institution of high education. The I-Squared Act would remove the cap on these filings and allow companies to fully invest in the foreign talent currently being trained in the nation's premier universities.

 

The I-Squared Act would also transform people's lives. Currently, there are several impediments for an individual in the United States with a student visa, to explore options in remaining the country to live. The I-Squared Act would remove these obstacles. Moreover, the proposal would allow dependent spouses of H-1B visa holders to work. Under current law, H-4 visa holders (dependent of an H-1B holder) are not authorized to work. Therefore, many individuals have had to sacrifice their careers in order for their spouse to be able to obtain an H-1B. The I-Squared Act recognizes the modern reality that many families include a husband and wife who work.

 

Finally, the I-Squared Act would eliminate the annual per-country limits for employment-based visa petitioners and increase the per-country caps for family-based immigrant visas. In Immigration, Innovation, Stability and Confidence, this blog argued:

The U.S. government should also shorten the wait-times for persons who wish to immigrate to the United States. Currently, some of these cases are taking more the twenty years to process. The long delays cause confidence in the system to erode, thus contributing to the undocumented immigrant phenomenon.

The I-Squared Act would adopt this view and allow individuals and families to immigrate faster to the U.S.

Since the proposal meets the definitions set out as to what immigration reform really is, (it would transform people's lives forever and it would strengthen the nation's economy), and it embraces suggestions that this blog has made in the past few months, Mundus Migrationis  has no other choice than to welcome the introduction of the I-Squared Act.

The above information is provided for information purposes. It should not be construed as legal advice or the formation of an attorney/client relationship.

5 Points to Consider Regarding the President's Immigration Executive Action Plan

By Carlos A. Calderin, Attorney
   Calderin & Oliva, P.A.

On Thursday, November 20, 2014, the President announced a series of executive actions on the issue of immigration.  It is expected that once fully implemented, these measures will benefit between 4 and 5 million people who are currently living in the United States undocumented.  Today I would like to discuss five points to be taken into account with the executive action announcement.

1. REQUESTS FOR DACA AND DAPA MAY CAUSE DELAYS WITH ALL IMMIGRATION MATTERS.  Among other things, the White House announced the future creation of the "Deferred Action for Parents of Americans and lawful permanent residents ("DAPA") program and the further expansion of the current program of Deferred Action for Childhood Arrivals ("DACA"). It is estimated that around 4 million people may benefit from the implementation of DAPA and expansion of DACA. It is not yet known how many people will apply for these programs during 2015. But USCIS warns that the processing of some applications may be delayed until the end of 2016. This can cause a slowdown in adjudication of other applications such as citizenship, DACA, hardship waivers, and family petitions. Therefore, it is recommended that interested parties make their requests (family petitions, DACA, citizenship, etc.) as soon as possible to avoid unnecessary administrative delays.

2. GET INFORMED EARLY. The expansion of DACA is expected around 90 days after November 20, 2014, and DAPA 90 days thereafter. As these dates approach, there will be a very large number of people who will seek legal advice on their particular immigration situation. It may grow increasingly difficult to obtain a qualified and competent lawyer who would be available to discuss these immigration matters. It is therefore recommended that interested parties not delay in seeking legal counsel.

3. BECOME INFORMED ON YOUR PARTICULAR CASE. There have been many rumors about DAPA/DACA and executive action. The interested individual should inform him or herself on his/her particular case to see if he/she qualifies for any of the measures announced and if it is recommended to apply in the particular case or not. It is also important to understand that the measures announced by the President are not related with paperwork for legal residence. Neither DAPA nor DACA are steps to permanent residence.

4. 2 OUT OF EVERY 3 INDIVIDUALS THAT ARE IN THE US UNDOCUMENTED ARE NOT ELIGIBLE FOR DAPA OR DACA.  About 8 million undocumented immigrants in the United States will not be eligible for a work permit under the measures announced by the White House on November 20. Therefore, it is essential that interested parties get informed on their particular cases before applying to ensure that they are eligible to be considered.

5. AFTER BECOMING INFORMED, PREPARE. The U.S. Citizenship and Immigration Services ("USCIS") will only approve persons who can verify that they qualify for DAPA or DACA. Interested parties who are well prepared will be eligible for work permits valid for three years.

The above information is provided for information purposes.  It should not be construed as legal advice or the formation of an attorney/client relationship.

Immigration to the Moon

By Carlos A. Calderin, Attorney
   Calderin & Oliva, P.A.

 

Last week marked 45 years since human beings first walked on the moon.  On January 20, 1969, Neil Armstrong and Buzz Aldrin landed on the area of the moon known as Mare Tranquillitatis (Sea of Tranquility) aboard the "Eagle" lunar module.   A few hours later, Armstrong descended the steps of the lander onto the moon surface and uttered the famous words, "That’s one small step for [a] man, one giant leap for mankind."  

 

Although, Armstrong and Aldrin, along with Command Module Pilot Michael Collins, returned to Earth four days later, they are in essence the first persons ever to migrate to another land outside of the Planet Earth.  Newspapers in the last days of July 1969, including the Dayton Journal Herald proclaimed that there would lunar bases by the year 1977. Since that mission, there have been no concrete attempts to send people to the moon for a stay longer than a few days.  However, this does not prevent the meditation on the possibility that some day there may be permanent establishments on the moon that will require some level of lunar immigration. 

 

Imagine a distant future, perhaps in a hundred years or more, when the moon is populated with massive biosphere zones that each house hundreds of thousands of people.  Rockets take off daily from Earth to transport personnel and supplies to these lunar bases.  The bases would offer work and other opportunities for those who could find a way to immigrate to the moon.  But, as advanced as these moon bases would be, their resources and their ability to sustain the lives of its populations would be finite, thereby requiring that access to them be regulated.  Perhaps an individual would need a special visa to travel to the moon for work or for pleasure.  A man approaches the gate at Cape Canaveral Spaceport to board a spacecraft, possibly an advance version of tech-billionaire Elon Musk's SpaceX Dragon. At the gate is a iris scanner, which quickly probes the man's eyes.  On a screen next to the scanner, appears a picture of the man, his itinerary that states that he is booked on the 2:10PM shuttle to Frigoris Base in the lunar north pole, and a screenshot of his Lunar-1A professional work visa. 

While the Outer Space Treaty, in effect since 1967, expressly prohibits any nation from laying claim to any part of the moon, it does not prevent a nation from maintaining ownership of a massive structure, like a biosphere.   Therefore, it could be argued that the U.S. would have jurisdiction inside a U.S.-installed moon base.  In such a case, the nation would have the power to regulate the migration  to such a base through laws and rule making.   Furthermore, former U.S. Presidential candidate Newt Gingrich made headlines in 2012 when he said that the population of a future moon base would have the right to petition the U.S. Congress to become a state.

An increase in the population on the moon would evidently lead to the emergence of group of native-born Lunarians, who may eventually decide to declare their independence from all nations on Earth. A political entity, such as this, would then have the power to foster or inhibit immigration to the moon.   Perhaps one day there will be those who will travel with a future version of a passport from a nation called "Republic of Luna", "United Lunar States", or simply "The Moon".

 

For some who are reading this, it may seem too farfetched that any of this will ever come to fruition. For those, I remind that it seemed farfetched when in the 1500s Leonardo Da Vinci sketched out the plans for an airplane that he called "La macchina volante" (the flying machine), four hundred years before the first airplane lifted off the ground.  It also seemed implausible in 1865 when French author Jules Verne wrote about human traveling to the moon in his novel From the Earth to the Moon (De la Terre à la Lune).  The dreams of these men of yesterday are the realities of our today.  Therefore, it is possible that the ambitious dreams of boy tonight may become a reality some day tomorrow on the moon. 

 

The above information is provided for information purposes.  It should not be construed as legal advice or the formation of an attorney/client relationship.

JFK and Immigration Reform

During this past week there has been a lot of discussion about President John F. Kennedy on account of the 50th anniversary of his death.  A recent CNN poll found that JFK ranks as the most popular U.S. president of the last half century.  According to the poll, his approval rating currently stands at an impressive 90%.  Perhaps one of the reasons for the high level of favorability is the general optimism held by people of what Kennedy could have accomplished in a second term had he lived.  When he was assassinated that fateful day in Dallas on November 22, 1963, Kennedy was only two years, ten months, and two days into his presidency.  Hence, when he is compared to other presidents who served longer, a significant weight is put on his proposals for the future.  For example, a trip to the John F. Kennedy Presidential Library and Museum in Boston would reveal that the exhibits there put a greater emphasis on his presidential election and speeches and less on his accomplishments than the other presidential libraries and museum do regarding the other presidents. 

One of Kennedy's documents that signals the direction that he would have gone as president had he lived is the proposal that he sent to Congress on July 23, 1963, a mere four months before his untimely death, to reform the U.S. immigration law as it existed at the time.   In 1963, immigration law was controlled largely by annual quotas based on national origin that had been in place since 1924.  President Kennedy believed that the quotas were unfair and should be eliminated.  The national origin quota system was created based on the composition of the nation's population as expressed in the 1920 census.  Kennedy argued that because of this, "the system is heavily weighted in favor of immigration from northern Europe and severely limits immigration from southern and eastern Europe and from other parts of the world."  However, immigration patterns had drastically changed since the early 1920s.  The immigration law with the national origin quotas was not equipped to handle the immigration reality of the 1960s. 

Therefore, Kennedy proposed that the system be substituted by one that allowed "those with the greatest ability to add to the national welfare, no matter where they were born, [to be granted] the highest priority" in being admitted into the country."  After this group of people, Kennedy stated the next priority should be "those who seek to be reunited with their relatives."

Yet, Kennedy did not believe that the national origin quota system should be eliminated overnight.  He believed "a reasonable time to adjust to any system must be provided if individual hardships upon persons who were relying on the present system are to be avoided."

Kennedy also made other suggestions in reforming the immigration laws.  He recommended that parents of American citizens, who at the time had preferred quota status, should not be subjected to the quota, and  a preference category should be created for parents of U.S. alien residents.  The first recommendation was later adopted into the law under the Immigration and Nationality Act of 1965.  However, there is still no preference category for parents of legal permanent residents.

Furthermore, Kennedy believed that immigration law should be structured to promote the admission of talented people into the country.  He felt that the stringent immigration process robbed the country of individuals who "would be helpful to our economy and culture."  He advocated for a smooth and simple procedure that would allow "highly trained and skilled persons [to apply for residency] without requiring that they secure employment here before emigrating."   This is an idea that has remained alive in the subsequent decades.  Its proponents have shared Kennedy's view that the U.S. should do a better job of attracting the world's talent to come to live and work in the U.S.  The EB-1 program for "aliens of extraordinary abilities" has partly remedied this problem by allowing persons who have exhibited extraordinary ability in the sciences, arts, education, business or athletics to immigrate into the U.S. without having to first secure employment.

Finally, there were two other Kennedy proposals that are worth mentioning.  At the time in 1963, there were no numerical limitations imposed on the number of immigrants coming from independent countries in the Western Hemisphere.  Immigrants from these countries were not hindered by the immense backlogs that exist at present time.  An individual from such a country could apply to immigrate to the United States almost immediately.  However, such a benefit only applied to nationals born in countries in the Western Hemisphere, which had gained their independence prior to 1952.  Kennedy wanted to extend this benefit to those born in countries that gained independence after that date. Also, Kennedy found that one of things that slowed the immigrant process was that many of the quota numbers were filled up by individuals who had since died, refused to accept an immigrant visa, or had immigrated to other countries.   Kennedy suggested that the Secretary of State should have the authority to terminate the priority of such applicants, thereby increasing the number of immigrant visas available.  Both of Kennedy's aforementioned suggestions were incorporated into the Immigration and Nationality Act of 1965.  Yet, prospective immigrants from Western Hemisphere countries are now subjected to the same preference categories as the rest of the world. 

The influence of John F. Kennedy's abbreviated presidency can still be felt fifty years later in different areas.  One such arena is that of U.S. immigration law.

The above information is provided for information purposes.  It should not be construed as legal advice or the formation of an attorney/client relationship.

DACA: Lessons from a Year Later

Today marks the one-year anniversary that the Deferred Action for Childhood Arrivals ("DACA") program went into effect.  The DACA program is a temporary measure, implemented by the U.S. Department of Homeland Security, that allows eligible individuals to apply for a discretionary determination on the part of the Department to defer a removal action.  If approved, the deferred action is valid for a period of two years and is renewable.  Recipients of the DACA program are eligible to work with approved employment authorization documents.   According to U.S. Citizenship and Immigration Service ("USCIS"), 430,236 applicants have been approved for DACA since August 15, 2012. 

This past year has certainly been a good one for those 430,236 individuals who have been approved. With their work permits, they have been able to legally obtain social security numbers and, in most cases, driver's licenses.  This has allowed them to come out of the shadows of fear and into the light of renewed confidence.  It has been a big step for many of them who have been living in the United States for most of their lives. Yet because of the actions of their parents and others in bringing them into the United States as children illegally, they were prevented from living their lives free from the fear of deportation.  Now, DACA has given them a renewable reprieve of two years from that fear.  It is quite possible that many of the 430,236 DACA recipients might never again be faced with the terror of being removed from the country because of the actions of their parents and others that were taken in a time that many of them were not even old enough to remember.

For these fortunate 430,236, DACA has been a wonderful benefit.  However, with this benefit comes responsibility.  DACA has opened many doors for them.   There is the door of seeking and obtaining lawful employment.  There is the door of being able to drive the streets with a valid driver's license.  For many, there is the door to higher education.   All of these doors, and more, have opened in the last year for these 430,236.  They have the responsibility to take the opportunity of the open doors and walk through the threshold to a better life.  They have the responsibility to show the rest of the country that they have the potential for success.  But, that is only possible is they seize the opportunity of the open doors. 

Finally, the 430,236 must understand that DACA cannot be the end for them.  They must strive for more.  DACA is not legal status.  An individual who has been awarded DACA is not in legal immigrant status as a U.S. citizen, permanent resident, or visa holder is.  The 430,236 continue to be in an undocumented or illegal status.   They must want more.  The House of Representatives is working on a KIDS Act that would allow many of the 430,236 and others like them to finally gain legal status in this country. However, many of those who would benefit from such a sweeping law have expressed disinterest.  The energy to see real change in their lives from just a few years ago has now turned into complacency.  Many have grown content with their new non-status.  It has become a sad current affair.  But, it does not have to be this way.  For the 430,236, and those that will join their ranks in the future, it cannot remain this way.  They must want legal status.  They must seize the opportunity of the open doors.  Only then, will they see real and lasting change in their lives.

The above information is provided for information purposes.  It should not be construed as legal advice or the formation of an attorney/client relationship.

Childhood Arrivals: Comprehensive or Piecemeal

There has been a lot of talk in the last few weeks about the desire of U.S. House of Representatives to "hit the reset button" on immigration reform after the U.S. Senate approved a comprehensive immigration reform bill late last month.  Political pundits have been divided between those who view the actions of the House as evidence that immigration reform is dead for the remainder of this year and those who believe that it is simply a minor delay in the process.

Rather than continue the comprehensive approach of the Senate, the House has signaled that it will tackle the matter of immigration reform piece-by-piece.  This may be good news or bad news, depending on how one looks at it.  By breaking up the proposal into parts, there may be important aspects of it, essential to our country's future, that are left behind in the debate process.  On the other hand, a piecemeal approach would allow the parts where there is general consensus to move forward in debate and possibly be approved quickly without being held back by other more controversial measures.

One of the immigration issues that has the greatest amount of political support is the question as to what to do with those who were brought illegally into the country as children.  Yesterday, House Speaker John Boehner expressed his support for granting legal status to those individuals in the country.   It was also revealed that Majority Leader Eric Cantor and Representative Bob Goodlatte are actively working on crafting such a bill.  The House Judiciary Committee is expected to hold hearings on the issue next week.

What the Cantor-Goodlatte bill will include has yet to be revealed.  However, what is clear is that the bill must build upon the Deferred Action for Childhood Arrivals ("DACA") program that was announced by the U.S. Department of Homeland Security last summer.   Since August 15, 2013, the DACA program has allowed over 400,000 individuals to remain in the country without the fear of deportation for a period of two years with an authorization to work which can be renewed.   While DACA has been a blessing for those that it has benefited, it is not a law and is simply a temporary measure.  Therefore, by definition, the Department of Homeland Security has the authority to end the program at any time.  The Cantor-Goodlatte bill, if approved, would be federal law.  Hence, it would provide the stability and clarity to would-be applicants that DACA fails to radiate.

On a August 18, 2012 post entitled, DACA, DREAM Act and the hope of tomorrow, this blog related the story of "Rodolfo":

"Rodolfo" graduated summa cum laude from high school. He went on to college where he excelled in his classes. His future would look bright except for the fact that he is undocumented. His parents brought him to this country illegally when he was just two years old. It was not his choice to come to this country. It was not his decision to be an illegal alien. But, these are the circumstances that he finds himself in. "Rodolfo" graduated college, once again with honors. It took him longer to finish than his classmates. The international student tuition that he had to pay limited the number of classes that he could take at one time. But, he found a way to continue his studies and persevere until he reached his goal--graduation. After college "Rodolfo" dreamed of finally putting his knowledge to work and finding lawful employment. However, he continues to be imprisoned by his reality-- he is an undocumented immigrant. On August 15, tears filled "Rodolfo's" eyes. They were not tears of joy. They were of continued frustration. "Rodolfo" turned 31 years old on May 16, 2012, one month too early to be eligible to apply for DACA. There will not be employment authorization for "Rodolfo" under DACA. He will have to continue to wait. Shouldn't a person of "Rodolfo's" caliber and education achievement have a chance to succeed in our country? For "Rodolfo" and others like him, DACA is too little, too late.

The following weeks and months will be crucial in determining whether piecemeal approach of the House works in tackling immigration reform.  If so, the first beneficiaries may be those such as "Rodolfo" who entered the U.S. as children illegally.

The above information is provided for information purposes. It should not be construed as legal advice or the formation of an attorney/client relationship.