Justice Dept. released a flyer, “How Employers Can Avoid Discrimination in the Form I-9 and E-Verify Processes,” which provides guidance in completing Form I-9 and E-Verify processes.
Please check attached document for information.
A Continuing Legal Education seminar delivered by Rajiv S. Khanna. This information is relevant for lawyers and business/HR management professionals. This seminar was presented for American Law Institute/American Bar Association and Lawline.
Here is an excerpt from a press release from USDOL. I have said this many times before, - government investigations are NOT the same as litigation or practicing transactional immigration or corporate law. This is an entirely different area of practice. We as counsel need to know the law, compliance as well as litigation. We must approach all investigations in the spirit of good faith compliance, yet protect our clients from unnecessary liability. The investigators are not only investigators, but in effect also prosecution and judge.
I have received e-mails from folks about my 2009 articles on immigration law compliance and end-client letter issues in H-1B cases published by American Law Institute - American Bar Association. Here is the link:
http://www.immigration.com/articles-rajiv-s-khanna
I am in my sixth year of H1B, which will expire on July 27, 2025. My I-140 was filed on July 12, 2024, and I expect a decision soon, given the I-140 processing time of 7-9 months. Once my I-140 is approved, I plan to apply for a three-year H1B extension.
My employer operates as a fully remote company, and they support my plan to work remotely from Europe starting June 1, 2025, while continuing to be paid on the U.S. payroll. I worked remotely from India and Europe for around six months during my H1B period without any issues re-entering the U.S. However, I plan to spend most of the next three years (over six months per year) outside the U.S., and I am seeking clarity on maintaining my H1B status, re-entry requirements, and compliance with immigration laws.
Questions:
1.) Given that my I-140 was filed on July 12, 2024, and assuming it is approved soon, should I apply for premium or regular processing for my three-year H1B extension? Would premium processing provide any specific advantages since I plan to work remotely from Europe starting June 1, 2025, while staying on the U.S. payroll, or should I go with standard processing and apply and wait for the decision while I am outside the USA? Perhaps the renewal decision will help before I move out of USA?
2.) What is the maximum time one can spend outside the U.S. each year while still maintaining H1B status? In one of your previous videos on H1B remote work, you referenced 8 CFR 214.2(h) regarding H1B workers' ability to work outside the U.S. while being paid in the U.S. However, I couldn’t find explicit wording confirming this. Could you clarify where this is stated?
3.) Given the current administration’s policies, are there any concerns with staying abroad for more than six months per year for the next three years while on H1B working remotely with a US payroll?
4.) Can I open a company in Europe to obtain residency there while continuing to do the same work remotely for my U.S. employer and receiving my salary in the U.S.? Would this create any H1B compliance issues? How frequently should I visit the U.S. to maintain my H1B status and avoid re-entry issues?
5.) If I visit the U.S. for only a few days or months and work from an Airbnb in the same Metropolitan Statistical Area (MSA) as my employer’s address, do I need to update or amend my H1B petition? If my employer undergoes a USCIS site visit while I am working remotely from abroad, what potential consequences could arise, and how should I handle it?
Working remotely outside the US on an H-1B is permissible, and time spent outside the US doesn't count towards your H-1 B limit. Given your I-140 was filed in 2024 and a decision is expected soon, standard processing for your H1B extension is recommended if you don't need it immediately, as there's no advantage to premium processing in your situation. There's no limit to the time you can spend outside the US while on an H1B. You don't need to update your H-1B if you visit the US for short periods and work remotely from an Airbnb within the same Metropolitan Statistical Area (MSA). A US site visit from your employer should not pose any issues as your remote work arrangement is legal. You can also legally open a company in Europe for residency while continuing to work for your US H-1B employer, although you should review any exclusivity clauses in your employment contract.
1. Our employees are deployed at government sites. Are we still obliged to pay the H-1 wage?
2. Can we ask such employees to use their paid leave?
A1. Yes. In my view, that obligation continues unabated.
1. Is submitting consolidated returns and audited financial statements for a parent company and its wholly owned subsidiaries sufficient to meet the burden of proof for establishing the company’s ability to pay by a preponderance of the evidence?
2. Where an employee who is the beneficiary of an approved I-140 and is eligible for AC-21 portability ports to a new employer in the same or similar occupation, must the new employer demonstrate the ability to pay the proffered wage from the date of portability?
3. When adjudicating I-485 applications for portability-eligible individuals where the petitioning employer is no longer in business, does USCIS require the subsequent employer to satisfy both the ability-to-pay requirement and the bona fide offer of employment requirement from the date of the employee’s subsequent hire through the approval of adjustment of status?
4. Why are prorated net assets not sufficient evidence to support ability to pay?
5. Why is the Yates Memo not applied if a beneficiary’s W-2 indicates that the actual wage paid to him/her is at least as much as the beneficiary’s proffered wage for the prorated period?
1. USCIS says that it evaluates each consolidated financial statement on a caseby-case basis under the preponderance of evidence standard to determine whether the petitioner has the ability to pay the proffered wage.
2. USCIS says that, in this situation, the new employer is not obligated to demonstrate the ability to pay from the date of portability.
Q1. What is FDNS?
Q2. What is the function of FDNS?
A1. U.S.
These videos are a part of series of Continuing Legal Educaion seminars delivered by Rajiv to various lawyers' groups. These provide an overview of how immigration law affects lawyers, business owners, HR and others in the work environment. If you would like us to provide informational conversation to your group, please contact us.