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H-1B visas affected by COVID-19 crisis

Businesses in New York may face new immigration challenges in dealing with the coronavirus crisis. Companies have already faced a number of concerns, and the restrictions on travel imposed due to COVID-19 may intensify them. Many companies rely on the H-1B program to employ highly skilled foreign nationals, especially in technical and scientific fields. In the past several years, this program has seen a growing number of denials. The restrictions on travel may be particularly troubling if an existing H-1B employee's visa renewal is denied.

Some employers are urging U.S. Citizenship and Immigration Services (USCIS) to stop denying renewal petitions for H-1B visa holders unless the employer or the foreign national violated the law. The complex travel situation could leave skilled employees in legal limbo or at risk if their renewal is denied during COVID-19 restrictions. Others have raised concerns about how remote work and work-from-home orders, put in place for infection control, could affect the status of certain L-1 and H-1B visa holders. However, no amended petition should be needed for these workers if they continue to serve in their same role in commuting distance of their job.

New policies make major changes in immigration law

Many factors go into the government's decision regarding immigration applications. With a ruling by the United States Supreme Court, the considerations are becoming much more personal, but also more judgmental. The highest court in the country ruled that immigration applicants can be judged based on their past reliance on public assistance and the likelihood that they will rely on them in the future.

The ruling doesn't set limits on what situations can be considered. Applicants could, theoretically, be punished for becoming unemployed or needing help with medical bills. There are a host of negative factors that are considered in green card applications. These include things like not being fluent in English and dropping out of high school. Unfortunately, the inclusion of financial struggles is now a reality.

An overview of the naturalization process

Foreign nationals living in New York or any other state may be able to become naturalized citizens. Those who wish to become citizens must have lived in the country as a permanent resident for at least five years. A person who is married to a United States citizen must be in the country as a permanent resident for at least three years to be eligible for the naturalization process.

Children of citizens who themselves were born outside of the United States can become citizens if they are currently residing in another country. A person who was under the age of 18 when a biological or adoptive parent became a citizen may automatically become one as well. This may be true if the minor was living in the United States when that occurred. To start the naturalization process, an individual will file Form N-400, and he or she will need to pass a test before being granted citizenship.

E-1 and E-2 visa eligibility ended for Iranians

Foreign nationals have relied on E-1 and E-2 visas when they wanted to enter New York or other U.S. locations to make investments or engage in trade. The Treaty of Amity, Economic Relations, and Consular Rights with Iran had granted Iranians the ability to apply for these visas. This is no longer the case due to the decision by the U.S. government to terminate the treaty according to a news release from the U.S. Citizenship and Immigration Services.

E-1 and E-2 visa eligibility for Iranian nationals stemmed from this treaty that the Trump administration withdrew from on Oct. 3, 2018. The termination occurred because the U.S. government leadership disagreed with a demand from the United Nations to cease blocking medical supplies, food and aircraft parts from entering Iran as part of ongoing U.S. sanctions against the country.

Many green card holders do not apply for citizenship

Immigration waiting times have grown far longer in recent years, and the number of pending applications for U.S. citizenship submitted by green card holders in New York and around the country currently stands at almost 650,000. Many of these permanent residents are likely to be disappointed when they do hear from U.S. Citizenship and Immigration Services as about 78,000 applications for naturalization are denied each year.

Permanent residents at or over the age of 18 who have lived in the United States continuously for five years or longer can apply for naturalization. Some green card holders are denied U.S. citizenship because they are not able to communicate in English or fail a 100-question civics test. Others are denied naturalization because background investigations reveal that the applicant was convicted of a serious crime, has not paid income taxes in a timely manner, owes child support or provided false information to immigration services.

What common jobs do immigrants gravitate toward?

Immigrants can come to America for any type of job, depending on experience, training and similar factors that also impact native-born workers. Many come over specifically because they have specialized knowledge. They work as scientists, doctors, professors and others in high-level professions. Companies in the modern workplace seek out the best talent they can find. They do not care where they get it.

That said, many immigrants who come to the United States looking for work, rather than coming because they have a job offer, tend to focus more on manual labor jobs. Some of the more common jobs they gravitate toward include:

  • Taking care of vineyards
  • Working as farmhands
  • Taking care of lawns
  • Doing outdoor cleanup projects
  • Working in construction
  • Working in leisure and hospitality professions
  • Washing cars
  • Giving manicures and providing similar services
  • Working as dry cleaners

Investigation finds fraud in student visa work program

Some companies in New York may hire foreign students on an F-1 visa that allows them to work for a U.S. company for one to three years as part of what is called the Optional Training Program. Colleges, employers and students alike praise the program, but according to an investigation, some students were "hired" by fake companies that gave employment verification.

Students are only permitted to apply in a small period of time that is 90 days before their program ends and up to 60 days after. Employers say they appreciate the new cultural perspective provided by international students, and colleges say the program is important in helping them recruit students from abroad. However, two companies, Findream LLC and Sinocontech, LLC were found to be false. Run by a Chinese national who is now facing a prison sentence, it provided nearly 2,700 students with false paperwork. An official at the University of Kansas, which had seven students who said they found employment with Findream, said schools could not police it because the students acted in good faith and the paperwork was all in order.

Mergers may lead to immigration law concerns

Business owners in New York may need to be conscious of immigration law even if they are not actively involved in pursuing visas for their employees. Immigration law can have an impact on regular transactions, and if businesses fail to comply with the requirements of the law, they could be held accountable. According to the Immigration Reform and Control Act of 1986, employers in the United States are prohibited from knowingly hiring or employing workers who do not have permission to work in the country. This means that all employees must have an I-9 form on file with the company.

U.S. Immigration and Customs Enforcement is responsible for investigating violations. Companies may be targeted for ICE audits and face extensive penalties or fines if they fail to maintain proper I-9 records for each employee. In some cases, companies may fall into IRCA non-compliance during reorganizations, mergers or acquisitions. Companies may decide to re-certify all of their employees, which means getting a new I-9 form from each worker. This can present a challenge for large workforces, so many companies choose to retain the records from the original company.

The appropriate use of B non-immigrant visas

Many foreign nationals enter New York with B non-immigrant visas. There are two different types of B visas used by people who aren't planning on moving to the United States permanently. The B-1 visa can be used by professionals visiting the country to temporarily participate in business activities. The B-2 visa can be used by tourists who plan to travel in the country for a short time or people who are visiting friends and family.

Business visitors using a B-1 visa must be going to the United States to participate in business activities related to their profession in a foreign country. They cannot be employed by a U.S. company in that foreign country. According to the Department of State's Foreign Affairs Manual, foreign nationals with a B-1 visa must maintain an unabandoned foreign residence, demonstrate strong ties to their home country, and must present specific and realistic plans for their visit.

Fraudulent marriage findings and subsequent visa petitions

If a person in New York submits a green card application and visa petition for a spouse on the basis of marriage and that person has been denied a marriage petition in the past because of a fraudulent marriage, the new petition can be denied as well. However, there could be extenuating circumstances that might allow the new petition to be granted.

INA Section 204(c) appears to be unambiguous in its language. It states that approving a visa petition is prohibited if a previous marriage-based petition has been denied as marriage fraud. In fact, the United States Citizenship and Immigration Services must independently review the original application. The USCIS district director makes the determination and cannot rely on the previous conclusions to reach that determination. Furthermore, new evidence can be considered as well. This means that the person can submit additional evidence showing that the marriage was not fraudulent or evidence indicating that the first adjudicators inaccurately assessed the situation.

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