Recession, Layoffs and Foreign Workers in E-1, E-2, H-1B, L-1, O-1,and TN Status

Due to the Coronavirus, and worldwide economic standstill, we are already seeing the beginning of large numbers of layoffs. More than a million workers in the US could lose their jobs by the end of March 2020. See, for example, https://www.washingtonpost.com/business/2020/03/19/unemployment-insurance-today-coronavirus/   Goldman Sachs and Morgan Stanley have declared that a global recession is underway, see https://www.bloomberg.com/news/articles/2020-03-17/morgan-stanley-economists-say-global-recession-now-base-case. What if you are a foreign worker who is laid off? What if you are an employer who must layoff foreign national employees?

The good news is that many foreign workers in temporary status will have slightly less than two months to find another job and file a new petition with USCIS. Employees in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 and TN status who lose their jobs due to layoffs or reduction in force, have 60 days (slightly less than two months) to find another job and file a change of employer or change of status petition with USCIS. The 60 days only applies if the worker has a valid E, H, L, O or TN petition. If the petition expires before the 60 days, the worker only has the time up until the petition expiration date. An individual may benefit from the 60-day grace period more than once; however, this grace period only applies one time per authorized nonimmigrant validity period. See, 8 CFR §214.1(1)(2). The whole purpose of the federal regulation is to “enhance worker mobility and ease the burdens nonimmigrant workers face when employment ends, either voluntarily or as a result of being laid off or terminated”. See 81 Fed.Reg. 82466 (Nov. 18, 2016)

Example: Ravi is a software developer on H-1B working for an IT company. Ravi has been happy with his job, and the employer has been paying him the prevailing wage and providing benefits. Unfortunately, due to the recession, his employer goes out of business and Ravi loses his job. At the time he loses his job, he still has six months left on his approved H-1B petition. Thus, Ravi has 60 days from the date he loses his job to find another H-1B employer, and to file a new H-1B petition for a change of employer with USCIS before the end of the 60 days.

Additionally, these temporary workers also have a 10-day grace period past the date of the petition validity (but, double-check that the I-94 is expiring on the same date!). So, suppose, an L-1, O-1 or TN employee is almost at the date of the expiration of his or her petition, and the employer has advised them that they are not renewing or extending the employee’s status. The L-1, O-1 or TN employee has a ten-day grace period after the expiration of stay to either file a petition for a change of status or extension of stay, or else to depart the U.S. See 8 CFR §214.1(1)(3).

This is also an option for H-1B workers, although H-1B workers have the advantage of being able to start work for the new employer immediately upon the filing of a change of employer petition, pursuant to H–1B portability, 8 CFR § 214.2(h)(2)(i)(H).

From the employer’s point of view, whenever terminating an H-1B worker, the employer must put the termination in writing, and is then obligated to notify USCIS that the company has terminated the employment of the H-1B worker. While a written termination is not required under federal immigration regulations for the E-1, E-2, O-1, L-1, or TN, it is always good practice to put terminations in writing, so there is no dispute later on as to salaries, etc owed to terminated foreign workers. Employers who “bench” their H-1B workers in nonproductive status are liable for payment of wages during the total time that the H-1B worker was not working, if the termination was not in writing.

Additionally, H-1B employers affirm when they sign the H-1B petition, that they will pay for the return airfare for the employee should they be terminated, to return to their home country. This provision has not been enforced much though.

If the H-1B employer does not currently have enough work, but wants to retain the foreign worker, they may file an amended H-1B petition for a part-time position. That way, the employer will be able to retain the worker in H-1B status without paying them whatever the full-time prevailing wage or actual wage is. The H-1B employee will be able to maintain legal immigration status, work some hours each week and at least have some income rather than sitting idle with no income.

Regarding E-2 treaty investor businesses, the employer needs to think of laying off foreign workers first, and trying to keep US workers on the payroll. Remember, continued extensions of E-2 treaty investor status depend upon sticking to the five-year plan for increasing the hiring of US workers and providing them with full-time employment. Thus, the foreign investor and business owner in E-2 status should first terminate foreign employees before laying off any US workers. Should the E-2 investor lay off US workers, the investor/employer is at risk of not being able to extend the E-2, due to a determination that the investment is only “marginal”. See 8 CFR §214.2(e)(15).

L-1 employers and employees need to be concerned not only about layoffs here in the US, but also about layoffs abroad, and company closures abroad. USCIS and the US Consulates abroad will deny L-1As and L-1Bs, should the related company abroad go out of business, or appear due to layoffs and decreased revenues, to be about to close its doors. The foreign related company must continue doing business for the length of the L-1’s stay in the US. Doing business is “the regular, systematic, and continuous provision of goods and/or services”. See 8 CFR §214.2(l)(1)(ii)(G)

Example: Fiorella has her degree in Fashion Design. She first worked for several years for a fashion design company in Milan, and then the parent Italian company transferred her to their subsidiary in New York as an L-1B, specialized knowledge worker.

Due to the Coronavirus epidemic and resulting lockdown in Milan, the Milan-based company goes out of business. While the US company is still in business, Fiorella is not able to extend her L-1B status because the parent company abroad is no longer doing business. However, at the time she needs to renew or change her status, no H-1B visa numbers are available either. So the H-1B is not an option. Luckily for her, the company advises her that they will not be able to extend her L-1B a few months before the I-94 expiration date.

Fiorella then decides to start her own fashion company. In her spare time at home, she has been making her own sketches and patterns, sewing and going to Fabscrap to get fabric, buttons, sequins, etc. So she already has some samples ready, for which she can advertise on line and get orders. As a citizen of Italy, she is eligible for E-2 treaty investor status. Through a combination of her savings, and a gift from her family, she is able to come up with $80,000 to start her own business, which she does. She incorporates her business, gets a business bank account, rents commercial space and she is ready to go. Of course, she needs a business plan and a schedule for hiring US workers. She may be able to obtain an E-2 visa, as a treaty investor, to develop and direct her new business (of course, she needs to be careful not to engage in work prior to any change in status or getting a visa).

There are actually successful fashion design companies that started up during the last recession in 2008-2009. See, “What 5 Successful Designers Learned Launching During the Great Recession”, https://fashionista.com/2018/08/fashion-designers-brands-recession-business

For all companies sponsoring foreign workers, it is a concern if revenues drop and there are layoffs, as the petitioning employer always has to convince USCIS and the US Consulate abroad that there is a real job waiting for the foreign worker, that the petitioning employer will remain in business for the time of the petition, and will be able to pay the foreign worker appropriately.

Copyright 2020 © Heidi J Meyers, all rights reserved.

The Law Office of Heidi J Meyers is OPEN and ready to assist you with any immigration issue!

Dear Valued Clients and Friends: Our office is open and will stay open regardless of the Coronavirus. Please do not hesitate to contact us with any immigration issue or concern. We are happy to help you! We can handle employment/business immigration issues in an all-enforcement all the time environment, as we combine experience in business immigration with deportation, inadmissibility and litigation. Law Office of Heidi J Meyers, 11 Broadway, Suite 925 New York, N.Y. 10004, heidimeyerslaw@gmail.com, (212) 791-4007), cell (646) 508-5225

Drunk Driving (DUI or DWI) and Immigration

An arrest for DUI (Driving Under the Influence) or DWI (Driving While Intoxicated) may have serious consequences for your immigration status, even if you are not convicted. If you are convicted of DUI or DWI, you may be barred from demonstrating good moral character for purposes of cancellation of removal or naturalization. Even worse, if your conviction constitutes a crime of moral turpitude, you may be found inadmissible or deported and removed from the United States.

The U.S. State Department may revoke your visa if you are arrested for DUI or DWI even if you have not been convicted. Remember, a visa is stamped in your passport and allows you to enter the U.S. in a certain nonimmigrant category, and is valid for a specific period of time. Once you are admitted to the U.S., you are then in a particular immigration status. The electronic I-94 states your immigration status and the period of time for which you are admitted. So a visa and an immigrant status are two different concepts.

If you are arrested for DUI (Driving Under the Influence) or DWI (Driving While Intoxicated) in the U.S. and your case is pending in criminal court, the US State Department may revoke your visa even if you have not been convicted. The US government takes arrests for DUI and DWI very seriously. If you are already in the U.S., a visa revocation does not mean you automatically lose your immigration status. It means, if you depart, you will not be able to re-enter because you do not have a valid visa.

In general, the State Department may not revoke the visas of foreign nationals who are already in the US, or on their way, but DWI and DUI are an exception. The State Dept may revoke your visa if you have a DWI or DUI related arrest or conviction within the past five years. The State Dept is required to notify the foreign national of the intent to revoke the visa, give the foreign national the opportunity to show why the visa should not be revoked, and request the foreign national to present the travel document that contains the visa.

The State Dept may ask the foreign national to appear at the US Consulate where the visa was issued. If the foreign national does appear, most likely the Consular Officer will physically revoke the visa, as well as any other valid visas the foreign national may have. If the foreign national does not appear at the US Consulate, the State Department will still enter the information into their databases and notify DHS (Dept of Homeland Security), ports of entry such as airports and border crossings, and also the airlines of the visa revocation.

Should the foreign national want to apply for a new visa, he or she will be referred to a panel physical to be evaluated as to whether he or she has a drinking problem, and may be a danger to themselves or others. Even if an applicant is not inadmissible to the U.S. on criminal grounds, he or she may be found inadmissible on medical grounds.

If you are convicted of drunk driving, there are additional consequences. In a 2019 decision, Matter of Castillo-Perez, 27 I&N Dec, 664 (A.G. 2019), in a decision certified to himself, the Attorney General held that two or more convictions for DUI during the statutory period would create a rebuttable presumption that the foreign national lacks good moral character under INA §1101(f) for purposes of an application for cancellation of removal under INA §240(A)(b)(1). While the decision does not specifically apply to naturalization applications, an applicant for naturalization also has to show good moral character under INA §1101(f), and so it is possible USCIS will start using this same standard when deciding applications for naturalization to US citizenship. Similarly, in Ledesma Cosino v. Sessions (9th Cir 2017), https://cdn.ca9.uscourts.gov/datastore/opinions/2017/05/30/12-73289.pdf, the Ninth Circuit held that substantial evidence supported the BIA’s finding that the applicant was a “habitual drunkard” and thus lacked good moral character for purposes of cancellation of removal. The BIA and the court took into account not only the applicant’s conviction but also testimony regarding at least a decade of alcohol abuse and cirrhosis of the liver.

Whether or not a conviction for DUI or DWI is a crime involving moral turpitude depends upon the particular state statute and its elements. In general, one single conviction for DUI or DWI does not constitute a crime involving moral turpitude, and does not make one inadmissible or removable (deportable) from the U.S. See, In re Torres Varela, 23 I&N Dec 78 (BIA 2001), https://www.justice.gov/sites/default/files/eoir/legacy/2014/07/25/3449.pdf

Arizona offense of aggravated driving under the influence, with two or more prior DUI convictions, is not a crime of moral turpitude. The specific statute under which the conviction occurred is controlling. Much depends upon whether the statute has a knowledge or intent requirement. The BIA has held that another Arizona statute, also involving multiple DUI convictions, is a crime of moral turpitude, because it prohibits driving under the influence knowing that one’s license has been suspended. Because of the knowledge requirement, that particular statute was found to constitute a crime of moral turpitude. See, Matter of Lopez-Meza, 22 I&N Dec. 1188 (BIA 1999), https://www.justice.gov/sites/default/files/eoir/legacy/2014/07/25/3423.pdf.   The BIA reasoned as follows: “In our view, a simple DUI offense is such a marginal crime. However, when that crime is committed by an individual who knows that he or she is prohibited from driving, the offense becomes such a deviance from the accepted rules of contemporary morality that it amounts to a crime involving moral turpitude.”

However, it is important to keep in mind that the interpretation of DWI offenses may change, especially as under the current administration the Attorney Generals have made a habit of certifying decisions to themselves and attempting to change years of precedents.

Even if a drunk driving conviction does not constitute a crime of moral turpitude, it is still a strong negative factor, and may lead an Immigration Judge or USCIS examiner to deny your immigration application in the exercise of discretion.

All foreign nationals who have been arrested for DUI or DWI must realize that this is a very serious matter, and should immediately seek help to rehabilitate themselves, by regularly attending AA or other alcohol-related rehabilitation programs and ceasing to drink. If you find yourself in this situation you will also need both a competent criminal attorney and a competent immigration attorney.

Copyright 2020 © Heidi J Meyers, all rights reserved.

Court holds Trump Policy on Unlawful Presence for Foreign students and Exchange Visitors (F, J and M) Unlawful.

On February 6, 2020, in Guilford College et al. v. McAleenan, a federal district court issued a permanent injunction prohibiting the Trump Administration from implementing its new policy regarding unlawful presence for F-1 students, J-1 exchange visitors and M-1 students.

Up until the recent change in policy by the Trump administration, for more than two decades, F-1 students, J-1 exchange visitors and M-1 students who entered the U.S. were allowed to remain in the U.S. for “duration of status” or for however long their educational program or exchange program, along with any extensions, or OPT, lasted. Thus, when they entered the U.S., CBP (formerly INS) did not give them a specific date by which to depart the U.S.

If an F, J or M visa-holder fell out of status or violated the terms of their stay, they would start accumulating unlawful presence from the date after either a US government official or an immigration judge determined they were out of status. Here the concepts get a little difficult, as there is a distinction between being out of status and accumulating unlawful presence, the details of which we will not go into now.

The Court found that any minor violation, such as working one more hour per week than the hours authorized, or moving to a new dorm without filing a change of address, could result in drastic consequences of the student being subject to a three- or ten-year bar.

If a foreign national accumulates more than 180 days of unlawful presence and departs the U.S., he or she will be subject to a three-year bar to returning. If a foreign national accumulates one year or more of unlawful presence and departs, then he or she is subject to a ten-year bar to returning to the U.S. So, the consequences are very severe.

For decades, foreign students and exchange visitors would only accumulate unlawful presence after a determination by USCIS, ICE, CBP or the Immigration Judge. The foreign students and exchange visitors were put on notice when they started accumulating unlawful presence, and would have the opportunity to depart the U.S. before the three or ten year bar kicked in.

However, the Trump Administration abruptly changed this decades-long policy in August 2018. According to the new policy, USCIS would start the unlawful presence clock on the original date of the status violation, not on the date that a USCIS officer made the determination that the person was out of status. So, a USCIS officer reviewing the file would back-date the accumulation of unlawful presence to the date that he or she believed the foreign student or exchange visitor first fell out of status.

The Court found that the plaintiffs had standing to bring the lawsuit, as they had shown an injury traceable to the government’s unlawful conduct in issuing the August 2018 policy. The Court used the examples of two of the plaintiffs, Ye and Li, who entered the U.S. as students, and who both enlisted in the U.S. Army and are awaiting basic training. They had been recruited by the U.S. Army due to their valuable language skills, and the Army had advised them not to leave the U.S. while they were awaiting basic training. Should a government official go and make a retroactive determination that they have been out of status while they wait for basic training, they would be subject to the three or ten year bars, and all their dreams of joining the Army would be dashed. Because the Court held that at least two of the plaintiffs had standing, it did not need to adjudicate whether the rest of the plaintiffs had standing.

The Court held that 1) the August 2018 USCIS Policy Memorandum was a legislative rule and invalid for failing to follow the APA (Administrative Procedure Act)’s notice and comment procedures, and 2) the August 2019 USCIS Policy Memo conflicts with the INA (the Immigration and Nationality Act), and must be vacated.

The District Court found that the August 2018 policy memo was a legislative rule under the APA. It changed prior policy, was inserted into the USCIS Adjudicator’s Field Manual, and was binding on USCIS officers. So, USCIS should have published the new policy rule in the Federal Register, and given the public notice and an opportunity to comment. Under the APA, the government is also required to provide a reasoned response to any comments. Simply issuing a memo and a press release did not comply with the law.

The Court also held that the new policy conflicts with the immigration statute. Congress first included the concept of unlawful presence (which differs from being out of status) in IIRIRA (the Illegal Immigration Reform and Immigrant Responsibility Act) n 1996. The Court found that the Trump Administration had improperly joined the two concepts of unlawful presence and status violations together, which conflicted with the meaning of the statute. Based on the statute, unlawful presence does not accrue until an adjudicator determines the person is out of status.

The Court granted a permanent injunction ordering that the Trump Administration return to the prior policy regarding unlawful presence for F, J and M visa holders. Where the government fails to comply with APA requirements in implementing new rules, a nationwide injunction is appropriate. The new Trump policy was vacated as unlawful applied to anyone who would be subject to it, not just the plaintiffs. Thus, the injunction is nationwide.

This means that USCIS and the Trump Administration must continue to follow prior policy on unlawful presence for F-1, J-1, and M-1 visa holders. The injunction applies throughout the United States. A great win for foreign students, exchange visitors, and universities!

NB – citation is Guilford College et al. v. McAleenan, 1:18CV891-LCB-JEP (2/6/2020 Dt Ct Middle Dt. North Carolina).

Copyright © 2020 Heidi J Meyers all rights reserved.

The New Travel Ban Still Allows Nonimmigrant Visas and Special Immigrant Visas, Depending on the Country

The Trump Administration’s new travel ban, or “Proclamation on Improving Enhanced Vetting Capabilities and Processes for Detecting Attempted Entry”, issued January 31, 2020 bans the issuance of immigrant visas (i.e., green cards processed from abroad by US Consulates or Embassies) to nationals of the following countries: Burma (Myanmar; Eritrea; Kyrgyzstan; Nigeria; Sudan; and Tanzania.

However, the ban allows immigrant visas based on the Special Immigrant Visa program for those who have advanced U.S. interests, and provides the example of those who have worked for a U.S. Embassy for 15 years or more. The ban also allows exceptions for Sudan and Tanzania, whose nationals may still be processed for all types of immigrant visas, except for those based on winning the diversity lottery.

Thus, nationals of Sudan and Tanzania may still receive green cards based on family or employment petitions, just not on the basis of having won the diversity lottery (green card lottery).

However, the ban does not apply to nonimmigrant (temporary) visas, thus nationals of Burma (Myanmar); Kyrgyzstan; Nigeria; Sudan; and Tanzania will still be able to apply for any nonimmigrant visa, such as B visitor for tourism/business, E-2 (only Kyrgyzstan), F-1 student, H-1B temporary professional, L managerial transferee or specialized knowledge worker, O-1A, O-1B aliens of extraordinary ability, P and so on.

The Proclamation only applies to foreign nationals of the above countries who: (i) are outside the United States on February 21, 2020, the effective date of the proclamation; (ii) do not have a valid visa on the effective date; and (iii) do not qualify for a visa or other valid travel document under section 6(d) of Proclamation 9645.

Applicants for an immigrant visa may apply for a waiver, under the prior travel ban, but the process is lengthy and there is a very low rate of approval.

For example, Achike is a US citizen, and he has petitioned for his wife, who is in Nigeria. The marriage petition has been approved, and the immigrant visa processing has been completed. His wife just needs an interview with the U.S. Consulate in Lagos in order to get her immigrant visa. If his wife is outside the U.S. on the effective date of the new travel ban and has not yet received her immigrant visa, she is banned from coming to the U.S.

However, as another example, another Nigerian national, Kesandu has been accepted into Boston University for Engineering. Even though the travel ban has already gone into effect, she can still apply for and receive her F-1 student visa

The Proclamation suggests that the ban on greencards for nationals from these six countries may be lifted at some time in the future should the governments of those countries comply with U.S. demands regarding information-sharing and electronically compatible documents.

Copyright 2020 © Heidi J Meyers all rights reserved.

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