If the Trump administration loses in court, tech employers will have more ' Neufeld Memo' [a memo on employer-employee relationships. Reminder: New RFE policy, premium processing suspension to take It will also expand its current suspension of premium processing to cover most H-1B petitions, including transfer the employer is cap-exempt or where the employee will be working May Visa Bulletin: EB-3 Philippines to advance 3. She came to the U.S. in August on a J-1 visa — September 28, USCIS Approves change of status filed after H1B employee's termination could not go back to the Philippines in order to apply for a student visa from there. . The parties to the employment relationship may enter into a contract.
Therefore, the Agreement is controlling and not the Discharge Notice effectuated on September 28, Before this agreement became effective, Camille did not accept her termination and was considering her rights and obligations as an employee and the options available to her to continue being employed. Therefore, before the Separation Agreement took effect, the employment relationship between The Restaurant and Camille had not ceased to exist.
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However, employment relationship is two-sided. It cannot terminate for one party and continue for another.
USCIS did not even address the circumstances of this case. This is abuse of discretion by the Service to summarily assume that Camille is not eligible for a change of status without consideration of the extraordinary circumstances presented. However, under regulations in 8 CFR The application for a change of status was filed within a week.
Given the circumstances, the delay in filing the application was reasonable. In addition, Camille has been benched by her employer, which means that the employer improperly terminated her and failed to pay the required wages until the H-1B petition was revoked on February 18, Camille filed the WH-4 complaint with the Department of Labor on May 5, asserting multiple violations by the employer, including benching.
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Camille is eligible for the classification sought In the denial, USCIS states that it is not persuasive that the applicant genuinely wishes to pursue a non-related MBA after ten years working in the U. Camille arrived to the U. Before AugustCamille was working in Manila, Philippines. However, this assumption is not correct. Camille has spent 6 years working in the areas of Sales Management and Director of Sales. With only a degree in Psychology, Camille cannot pursue higher level management positions in the Philippines as most businesses there require applicants to possess formal graduate education in the areas of management or business administration.
According to 8 CFR Therefore, USCIS abused their discretion by not requesting the documents and denying the application based on ineligibility for F-1 status. This was an interesting turn in the adjudication.
By signing the Offer Letter on October 1,the employer has confirmed its offer of employment to Camille based on the approved H-1B petition. The law permits the parties to the employment relationship agree to any limitations, otherwise lawful, of the employment relationship. When an employer promulgates formal personnel policies and procedures disseminated to employees, a strong inference may arise that the employer intended workers to rely on these policies as terms and conditions of their employment, and that employee did reasonably so rely.
A covenant of good faith and fair dealing is implied by law in all contracts. An application of this covenant necessitates the employer to refrain from behavior that tends to deprive the applicant from the benefits of the agreement. Covenant of good faith and fair dealing means that the employer should not contravene the reasonable expectations of the employee as to the terms of the employment relationship that is controlled by the approved H-1B petition.
The fact that the employer signed and filed the LCA and the H-1B petition means that the employer had agreed to abide by the proper H-1B employee termination procedures. The employer, subsequent to the H-1B approval, offered Camille the position pursuant to the H-1B terms.
Therefore, the parties have entered into an agreement that their relationship is governed by the applicable H-1B regulations, including proper employment termination. Since the H-1B rules dictate that the employer has to send the notice terminating the employee to USCIS, the employer did not effectuate proper termination and, thus, did not terminate Camille on September 28, according to the employment agreement between them.
Accordingly, pursuant to the agreement between The Restaurant and Camille, and in compliance with the H-1B regulations, Camille was still an employee of the Restaurant when she filed her Application to Change Nonimmigrant Status to F The case was finally over and Camille could continue her MBA program without worrying about her immigration status.
Category: - ABIL-Immigration-Updates
Current immigration regulations do not give terminated H-1B workers any grace period to file an application to switch to another employer or to change status. The H-1B status terminates as of the date the employment ceased. This leads to unfortunate results. Some employers take advantage of H-1B workers knowing that their status depends on continued employment.
H-1B workers throughout the country are forced to tolerate hostile and abusive working conditions, discrimination in the work place, and underpayment of required wages in fear of being discharged and immediately lose lawful status.
Not many employees decide to complain about the H-1B violations. In an effort to preserve lawful status in the U. Change in USCIS policies allowing for a grace period after termination of H-1B employment will not only afford the H-1B nonimmigrants the benefits of the legal protections against employment exploitation and retaliation, but will also decrease the unemployment rate and will improve the working conditions of U.
BAHA has been deployed as a justification to restrict legal immigration for the purpose of protecting American workers. However, this rationale makes no sense in a full employment economy when businesses are hurting because they cannot hire foreign workers.
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Therefore, the only other possible rationale to restrict legal immigration is to advance white nationalism, which is what Trump promised and continues to promise to his base of supporters.
The extension of the previously suspended premium processing for H-1B cap cases means that employers who were expecting foreign nationals to start their jobs on October 1, may no longer be able to do so if the H-1B petition is not approved.
This renders the H-1B visa program virtually useless. Employers had to offer the jobs prior to April 1, and then file H-1B petitions on behalf of the foreign national within the first five days of April to be considered in the H-1B visa lottery.
Since USCIS receivedH-1B cases earlier this year, which exceeded the maximum 85, H-1B visas that can be issued, more applications got rejected rather than accepted under the H-1B lottery this year. Those H-1B petitions that got selected are susceptible to receiving an RFE and a possible denial under the new heightened scrutiny policy.
The expansion of the suspension of premium processing means that those H-1B visa holders who are changing employers will not be able to get the assurance of an approval when they make the switch. Although an H-1B worker can port to a new job without waiting for the approval, so long as the employment starts after the new employer has filed the H-1B petition and request for extension of status, both employers and H-1B workers would like the security of an approval before they start their new jobs.
The expansion of the suspension of premium processing will hinder mobility of H-1B workers. This in turn will hinder competitiveness and will also inhibit skilled H-1B workers from improving career prospects and getting better compensation, resulting in an adverse impact on US competitiveness in the long run.
The suspension of premium processing for amending an H-1B petition also creates further uncertainty as to the fate of the amendment request that may be challenged and denied under the heightened scrutiny being given to such petitions under the Trump administration.
The only saving grace is that premium processing has not been suspended for extension requests with the same employer. The instructions to Form I state that box 2.H1B RFE: Everything You Need to Know
There are bound to be non-material changes to the job duties, including salary increases, at the time of filing any H-1B extension request.