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Prashant Bhatia,
Esq. Attorney at Law
Seton Hall University Law Graduate
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LAW OFFICES OF
ROBERT A. MURTHA, Jr.
All Immmigration work including H1-B, Labor Certification and
Work Authorisation, Bankruptcy, Divorces
401 Broadway, Suite 203
New York, NY 10013
Tel : (212) 966-2154
(Mon-Fri 10-5; Sat. 1-5)
(admitted to New York & Federal Court)
B
e Aware of the 30/60 Days Rule to Start
the Payroll & Payment of Salary in
ʺInactive Statusʺ
Regulations require that employers must
begin paying LCAstated wages when the
employee ʺmakes him/herself available for
workʺ but not later than 30 days of employeeʹs
entry or 60 days from Change of Status if in the
U.S. Liability begins to accrue when the person
ʺenters into employmentʺ with the employer.
Thus, even if the worker has not yet ʺentered
into employment,ʺ when the H1B worker is
present in the U.S. on the date of the approval of
the H1B petition, the employer shall pay to the
worker the required wage beginning 60 days
after the date the worker becomes eligible to
work for the sponsoring employer. The H1B
worker becomes ʺeligible to workʺ for employer
on the date set forth in the approved H1B
petition filed by the employer.
An employer must continue to pay an H1B
employee who is not working due to a
nonproductive status at the direction of the
employer (e.g., benching because of lack of
work, lack of a permit or license). This
regulation applies even if the H1B employee is
receiving training either provided by the
employer or through some other external
arrangement at the direction of the employer.
Thus, the employer is liable for both
nonproductive time as well as productive time
once employee becomes eligible for work.
Employers who do not pay nonterminated H1
B employees may face civil penalties.
Employers are, therefore, advised to pay an H I
B employee his or her salary as listed on the
LCAuntil that employee has been terminated
and the USCIS has been notified of the request
to withdraw the H IB Petition.
Changes in Employee Work Location:
Whether or Not to Submit New/Amended
Petition.
Putting an end to the confusion that
prevailed among Immigration Practitioners for
almost two decades, the Administrative
Appeals Office (AAO), through a Precedent
decision, Matter of Simeio Solutions, LLC, 26
I&N Dec. 542 (AAO 2015), clarified that an
amended H1B Petition, with the corresponding
LCA, is required to be submitted to United
States Citizenship and Immigration Services
(USCIS) when there is a “material change” in
the terms and conditions of employment.
In Simeio Solutions, the AAO specifically
stated that when H1B employees change their
place of employment to a worksite location that
requires employers to certify a new Labor
Condition Application (LCA) for
Nonimmigrant Workers to the Department of
Homeland Security, this change may affect the
employee’s eligibility for H1B status; it is
therefore a material change for purposes.
Later, USCIS issued a new guidance
clarifying whether or not the employers are
required to submit H1B amended petition
depending on when and where the employee
moved. This guidance also clarified the time
line for submitting the amended petitions.
As per the new guidance, if an H1B worker
moved to a new location not covered by the
existing petition prior to or on April 9th, 2015,
the date on which the Simeio Solutions decision
was published, the “…USCIS will generally not
pursue new adverse actions (e.g., denials or
revocations) solely based upon a failure to file
an amended or new petition.” Simply put, an
H1B amended petition involving a location
change outside of an MSAwould be required if
the change happened after April 9th, 2015.
However, it needs to be noted that this guidance
will not protect H1B employers if an adverse
action was initiated prior to July 21st, 2015.
Further, the recent Memorandum provides a
Safe Harbor Period for all moves requiring an
H1B amended petition, which happened
between April 9th, 2015, and August 19th, 2015.
If any move took place during this period of
time then petitioning employers must submit
H1B amended petitions by not later than
January 15th, 2016. Additionally, any change in
the place of employment (outside the MSA
listed on the LCA) after August 19th, 2015, shall
require an amended H1B Petition. For quick
reference, here is a helpful chart of when H1B
amended petitions need to be submitted.
An employer who needs to temporarily
place an H1B nonimmigrant worker in a place
of employment that is not listed on an existing
certified LCAmay do so under the shortterm
placement provision without filing a new LCA
for the temporary geographic area of
employment. Note that this provision may only
be used for an H1B nonimmigrant worker who
is already in the United States and working for
the employer.
There are certain obligations that employers
need to satisfy when utilizing the shortterm
placement option. Specifically, the employer
must pay that worker: (a) The required wage
rate (applicable to the permanent work site on
the supporting LCA); (b) The actual cost of
lodging (for each workday and nonworkday);
and (c) The actual cost of travel, meals, and
incidental or miscellaneous expenses (for each
workday and nonworkday).
Additionally, there are certain limitations too
for using the shortterm placement option. An
employer may place an H1B worker in short
term placement only if there is no strike/lockout
in progress in the H1B workerʹs occupation at
the shortterm location and the employer does
not already have an LCAon file for the
geographic area of employment. Moreover, the
placement of the individual H1B worker at any
site in an area of employment should not
exceed 30 workdays (consecutive or non
consecutive) within a oneyear period. Such
placement may be for an additional 30
workdays, but for no more than 60 workdays,
in a one year period, where the employer is able
to show that the H1B nonimmigrant maintains
ties to the home worksite (e.g., a dedicated
workstation at the permanent worksite; the
employeeʹs abode is located near that worksite),
and the worker spends a substantial amount of
time at the permanent worksite.
First Come, First Serve: Potential Benefits of
Starting the Green Card Process Early for H1B
Employees.
It is never too early to start the employment
based Green Card process, especially if the H
1B workers are from India and China[4] or other
quota countries. For H1B workers from India, it
may take more than a decade to finally obtain
an employmentbased Green Card[5]. With
such a humungous wait time, it does make a
difference to have H1B workers join the Green
Card wait line as early as possible.
Understandable, joining the Green Card cue
may not provide any immediate relief to the H
1B workers but it may allow spouses of certain
H1B workers to work if they are able to show
an intention to live and work in the United
States permanently.
The Department of Homeland Security
(DHS) has extended extend employment
authorization to dependent spouses (not
dependent children) of certain H1B workers.
The new rule allows H4 dependent spouses of
certain H1B nonimmigrant workers to request
employment authorization, as long as the H1B
worker has already started the process of
seeking lawful permanent residence through
employment. Eligible individuals includes H4
dependent spouses of principal H1B workers
who: (1) Are the beneficiaries of an approved
Form I140, Immigrant Petition for Alien
Worker; or (2) Have been granted an extension
of their authorized period of stay in the United
States under the American Competitiveness in
the Twentyfirst Century Act of 2000 (ʺAC21ʺ)
as amended by the 21st Century Department of
Justice Appropriations Authorization Act.
With the recent changes in Visa Bulletin,
effective October 2015, another major potential
benefit of starting the Green Card petition is
that it may allow the principal beneficiary and
News India Times October 9, 2015
23
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or
epaper.newsindiatimes.com
IMMIGRATION
By:
Michael Phulwani, Esq.,
David H. Nachman, Esq.
and
Rabindra K. Singh, Esq.
WHAT HR MANAGERS AND
BUSINESS OWNERS NEED TO
KNOW ABOUT “ONBOARDING”
NEW H-1B EMPLOYEES? – Part 2
his/her dependent(s) in the United States to
obtain Employment Authorization Document
(EAD) and Advance Parole much earlier than
getting the actual Green Card using the new
“Filing Date” Chart.
Conclusion
Onboarding H1B employees require strictly
adhering to the H1B regulations and many
practical nuances associated with those
regulations. Although H1B regulations have
been called a “Toothless Tiger” in the past, they
certainly are not. HRManagers/Professionals
and Business Owners should ‘Play it Safe’
when it comes to handling the onboarding of
new H1B employees as not abiding by the
regulations may result in huge monetary fines
and/or civil/criminal charges. There is also a
possibility of getting the Employer debarred
from using the H1B program in future, and it
could even impact using other nonimmigrant
and immigrant visa categories for any future
projects.
_______________________________________
[4] mainland born
[5] Projections based on October 2015 Visa Bulletin released by
the Department of State.
Date of Employee(s) Movement Outside
Listed on LCA.
What Action Needs to be Tak
On or before April 9, 2015.
No amended H-1B petition requ
After April 9, 2015, but prior to AugMust submit H-1B amended or n
petition by January 15, 2016.
On or After August 19, 2015.
Must submit H-1B amended or n
petition.
