Q&A’s published on Lawyers.com and the Epoch Times on May 29, 2020 1. Effect of Divorce on Green Card? 2. Can I Travel on B1 (Initial Training) While L-1B Blanket Petition is on the Way? 3. Can I Send my Fiance Appeal Application With a Note that Say We Have Kids and I Am Pregnant?

1. Effect of Divorce on Green Card?

I have a 10-year green card obtained through a 4-year marriage with my USC husband. We are now peacefully heading to get a divorce. I obtained my green card Oct of 2018. Will I lose my green card? Can I still naturalize in 5 years?

Mr. Lee answers,
Many people divorce in the United States every year. The fact that you are now heading to the divorce after obtaining your green card in 2018 would not necessarily raise flags with U.S.C.I.S. You would not lose your green card based on that circumstance. You can also still naturalize in five years. At the naturalization interview, you may be asked questions to verify that the marriage was bona fide, but just on the circumstances that you present, there is nothing alarming. 

2. Can I Travel on B1 (Initial Training) While L-1B Blanket Petition is on the Way?

I am having valid B1 Visa till 2027 , My employer has already filed L1B for me and I will be receiving petition in next week, but visa interview date is after 50 days and my employer want me to come early , can I travel on B1 (for initial training) now and later on come back to my home country for visa interview ? Will it increase my chance of rejection during L1B visa interview ? can I give visa interview in 3rd country near to USA because my home country is far away (18 hours flight) from USA , will it increase chance of rejection of L-1B?

Mr. Lee answers,
There is a possibility that you may encounter a problem at the time of interview if the consular officer believes that the employer and you were trying to jump start your date of employment.  There is a risk if your employer takes this path. Interviewing in a third country near the USA increases the chances of rejection as many consular officers believe that the persons best able to handle initial cases are consular officers in the person’s home country. You may be asked to go back to your home country for interview by a third country consulate if you decide to take that path. 

3. Can I Send my Fiance Appeal Application With a Note that Say We Have Kids and I Am Pregnant?

I am a USA permanent resident. The judge denied my fiance case and he made an Oder to remove him to leave USA in 30 days. I am pregnant I have 2 kids.

Mr. Lee answers,
Unfortunately your fiancé will not be able to appeal the judge’s order successfully on the basis that he has U. S. citizen children and that you are now pregnant. If he has other grounds for appeal, he may bring those out before the Board of Immigration Appeals. As you are a green card holder, you and your fiancé may wish for a consultation with an immigration lawyer to explore any other options that you may have. 

Q&A’s published on the World Journal Weekly on May 24, 2020 – Not Selected for H-1B Registration, What Should I Do Now?

I am on OPT until 7/20/20, and my employer filed for my H-1B registration, but I just learned that I was not selected. What can I do at this point?

Mr. Lee answers,
I note that because of the present coronavirus situation, the unemployment figures have risen rapidly as employers are furloughing or laying off many staff members. There is a distinct possibility that many H-1B registrants will not be able to go forward with petitions and U.S.C.I.S. may be forced to either conduct another draw or go further down the list of the draw that has already taken place to select more applicants. Other than that possibility, you can check with your school to see whether you are eligible for a STEM extension if you are unsure; continue your F-1 education and try again next year; return to school and request CPT (better at a higher level of education), explore the possibilities of L-1 intracompany transferee visa, E visa if from a treaty country, O-1 visa especially those on the PhD level, or possibly gaining H-1B visa status through working with or working at a cap-exempt organization such as an institute of higher education, nonprofit affiliated with such Institute, a nonprofit research organization, or governmental research organization.

 

Q&A’s published on the World Journal Weekly on May 17, 2020 1. Filed I-485s for Self and Daughter in Early February, Mine Accepted, Daughter Rejected – What to Do? 2. Holding Green Card Status and Poor, What Chances to Sponsor My Other Children for Green Card?

1. Filed I-485s for Self and Daughter in Early February, Mine Accepted, Daughter Rejected – What to Do?

I filed I-485 adjustment of status application forms for myself and my 9 year old daughter in early February which also included two I-130 forms and I received the receipts in March for myself, but the whole package of my daughter came back because I did not sign her form. Should I sign the form and send it back in at this time? Also other questions – I know that the forms have changed and that there is a new one, I-944. Do I have to send that one in? I paid a lesser fee for her before because we were filing together. Her I-485 fee was $750 since she was filing with me. Now do I pay that or do I have to pay the $1140 filing for her filing alone? Finally do I have to say that she is not legally here on the form now since our visas expired in early March? When I filed for the first time, we were still legal. Can I still say the same now because it was only a technical error?

Mr. Lee Answers,
I will assume that you are married and that your US citizen spouse filed I-130 petitions for both you and your daughter in conjunction with your I-485 applications –otherwise there would be no need for the double l-130s.  if so, your daughter is still eligible to file an I-485 application as  she qualifies as an immediate relative of your spouse and immediate relatives can adjust status if they entered the US legally even if they have overstayed. Given the situation that there is nothing to lose in terms of statutory eligibility for you to begin again with your daughter, the best course is probably to refile for her using all the new forms that U.S.C.I.S. has mandated since February 24, 2020. You should also check off the box that she is not lawfully here at this time, and if you wish, explain the situation on the last page of the form. As a new filing, you would fill out the I-944 form for her and pay the additional fee.

2. Holding Green Card Status and Poor, What Chances to Sponsor My Other Children for Green Card?

I immigrated through my parents’ petition for me and am still a permanent resident. I have two children 10 and 12 years old by a former girlfriend in Hong Kong and now she wants me to petition for them to live with me rather than her. I married in the United States and have a child, but I do not make much money and have government assistance with my rent and my kid here has food stamps. What are my chances of having the two children successfully come to the US?

Mr. Lee answers,
Under the present state of US law including the new public charge provision that came into effect on February 24, 2020, the difficulty level of having your children come to the country if they do not have good prospects and assets is significantly raised in a situation like yours. Hopefully you will be able to find a joint sponsor who is related to you and making high income as that might help. Although these are trying times economically, it would truly be helpful if you got yourself a good job so that you could show proof of steady income at a level of at least125% of the federal poverty guidelines.to support your present household and the children you intend to bring over.

Q&A’s published on Lawyers.com and the Epoch Times on May 15, 2020 1. Would a Civil Case (Owing 2 Months Rent) Affect Me in the Future from Getting a Visa? 2. My OPT STEM Case is Processing Right Now. Am I Eligible to Work Right Now? 3. Would an Economics Degree + 1 Financial Accounting Course+ 1 Year Accounting Experience be Enough for a TN Visa Accountant Position?

1. Would a Civil Case (Owing 2 Months Rent) Affect Me in the Future from Getting a Visa?

I’m a Mexican student in Boston. I have been renting an apartment in Cambridge, MA. My landlord is planning on retaining my security deposit because 2 years ago we retained 2000 USD of the rent because we did not had A/C for 2 months. We are planning on not paying our last month and then go back to Mexico. Does a civil case (housing case) would affect my possibilities of getting a visitor’s visa in the future?

Mr. Lee answers:
A civil dispute is largely not relevant in the decision of whether to issue a US visa. The only relevance would be whether a consular officer on somehow finding out from you the details of the dispute over rent might come to a different conclusion that you did not pay because you did not have the resources to do so and might be a danger to either become a public charge or take up unauthorized employment.

2. My OPT STEM Case is Processing Right Now. Am I Eligible to Work Right Now?

I applied my OPT STEM two month ago. They return my materials twice because my form was outdated. I sent them the third time, then they receive it and processing right now. The first time I sent my application was on time. The third time my EAD card already expired. Am I eligible to work since they are processing my case right now?

Mr. Lee answers:
Although those applying for a STEM extension have the right to continue working during the time of extension, that is predicated upon the application for extension being filed on time. Your application appears to have been rejected 2 times by U.S.C.I.S., and you state that on the 3rd occasion, your EAD card was already expired. Under the circumstances, it would not appear that you have employment authorization at this time.

3. Would an Economics Degree + 1 Financial Accounting Course+ 1 Year Accounting Experience be Enough for a TN Visa Accountant Position?

I am a Canadian citizen working for a nonprofit in San Francisco. I’m currently on OPT as an accounting assistant and my employer would like to extend my employment and promote me to a full accountant position when my OPT expires in June. Would having an economics BA + financial accounting college course + 1 year accounting training and experience be sufficient credentials for a TN visa accountant position?

Mr. Lee answers:
An applicant for a TN professional position is adjudged eligible by degree, CPA, CA, CGA, or CMA, and not a combination of education and working experience. In your case, an immigration officer or inspector would look at your economics degree to determine whether it is closely related to an accounting degree. Economics would appear to be more related to marketing than to accounting, but the decision would be up to the adjudicating officer.

Q&A’s published on the World Journal Weekly on May 10, 2020 1. Thinking About Changing from L-1A to H-1B and Have I-140 EB-13 Approval Already. Should I?

1. Thinking about Changing from L-1A to H-1B and Have I-140 EB-13 Approval Already. Should I?

I am here as an intracompany transferee under L-1A manager status in my fourth year and am thinking about changing my status to H-1B specialized worker. My I-140 petition as a multinational manager under EB-13 has already been approved. I am doing this because I am born in India (very long waiting time) and I  know that I have a chance to continue my legal nonimmigrant status even when the maximum time for my H-1B expires which I would not have under L-1A status. What is your opinion of my thinking?

Mr. Lee answers,
I do not see any negative impact with your plan to switch from L-1A to H-1B if you are able to do so successfully. I note that you would have to be selected under the new H-1B registration process of U.S.C.I.S. and the company would have to prove that your position is a specialized occupation if you are selected. If you stay with your present company for the long duration, you may under current law still receive your permanent residence through the approved I-140 petition as long as the job is the same, or the job changes but is in the same or similar occupation six months after filing your I-485 application for adjustment of status. If your job changes fundamentally with your present organization, you would have to go through a labor certification application  process or another EB-1C petition even though you would be entitled to maintain the priority date of your I-140 approval. If you move to another company,  you would only be able to continue your entire case if you were in the I-485 stage, the I-485 was pending for six months, and the new position is in the same or similar occupation you had in the approved I-140 petition.

Article:Recommendations for U.S.C.I.S. Reopening Offices During Covid-19

As published in the Immigration Daily on May 7, 2020

U.S.C.I.S. is now tentatively scheduling its reopening for June 4, 2020, and the public and legal community are rightfully anxious over what plan the agency has to safely protect the public, its employees and contractors, and still efficiently handle the business of immigration processing. Given the way that the Covid-19 crisis has been managed so far, there is far less than a firm conviction in the minds of all that this will be done right. The speed with which the government wishes to reopen the country apparently in disregard of the human toll (data projections of daily deaths doubling to about to 3000 daily by June 1 in a leaked White House internal document since disavowed as not being produced by or presented to the president’s coronavirus task force) makes one wonder whether the reopening will be carefully thought out or accomplished haphazardly.

Will the scene outside the larger immigration offices resemble total chaos or manageable order with social distancing? Is there also a plan in place for the Application Support Centers (ASC’s)? Will U.S.C.I.S. be able to efficiently process cases, or will people have to wait an interminable period of time for their appointments? For cases already in the pipeline with medical and background checks soon to expire, slow processing will mean additional expense and updating medicals and even more pending time if additional security checks must be run either before or after interviews. The following are some immediate suggestions on how to reduce the number of individuals needing to go into the immigration offices that can be easily implemented:

  1. Stop the practice of interviewing every employment-based (EB) adjustment of status case. Interviewing without exception is a practice that only came into existence in October 2017, mainly in response to widely perceived fraud in EB-4 religious cases, not other EB categories. Before that time, U.S.C.I.S. only interviewed a small percentage of employment based cases. Unless the agency is able to point to a large number of fraud permanent resident employment cases caught through interviewing, it should drop the need for interviewing all and only selectively interview.
  2. In all adjustment of status cases, U.S.C.I.S. should give internal guidance and stop sending out interview letters for persons other than the principal applicant (and spouse in a marriage case). The principal applicant should be instructed to bring adequate documentation of relationship to the other immigrating members of the family.
  3. In petition cases involving non-spouse petitioners, the petitioner should be specifically instructed not to appear. If an interviewing officer has doubts concerning family members or a petitioner, he or she can schedule a further interview.
  4. For naturalization cases involving applicants qualifying under the three-year marriage to US citizen rule, some immigration offices expect a US citizen spouse to be sitting in the waiting room. The appointment letter should make clear that the US citizen spouse is discouraged from appearing.
  5. For ASC’s, many times the only purpose of an appointment is for the ASC to take a photograph – U.S.C.I.S. should return to the old ways of relying upon photographs submitted at the time of filing. In connection, it should change its instructions to require photographs for applications on which it has waived the requirement, e.g. I-90 applications to replace permanent resident card, N-400 applications for naturalization. It should make it a practice to always rerun the captured fingerprints instead of asking people to come in to take partials after their fingerprints are already on file. It should also stop asking or requiring children under the age of 14 or elderly applicants 79 or older to attend biometrics appointments.

In these ways and others, immigration offices can continue to efficiently process cases without backing up the immigration queue of cases ad infinitum.

The second question is how to protect members of the public and U.S.C.I.S. and contracted workers entering the premises.

  1. Although unproven as to whether they can be reinfected or infect others, the government should have as many security personnel as possible available out front who have already tested positive for antibodies to the coronavirus to first meet people coming into the buildings.
  2. Social distance the line.
  3. Take no-contact forehead temperature checks on everyone before they enter the building.
  4. Hand out masks and gloves to those entering the building.
  5. Do not ask members of the public to take off their shoes. A terrorist with a shoe bomb would cause minimal damage in a socially distanced office, would only be a blip on the news with everyone concentrated on the pandemic (which has so far taken a gruesome death count of 75,000 US citizens, permanent residents, nonimmigrants and undocumented), and could cause more damage infecting himself or herself and then others with the coronavirus.
  6. After each use, sanitize the bins into which people place their belongings to go through security.
  7. Increase the number of available bins and persons wiping them down so as to not make going through security a nightmare.
  8. Social distance the customers from the security clearance until they arrive at the designated room, including limiting the numbers on each elevator.
  9. In the interview room, maintain social distancing in the waiting areas by removing seating or (even easier) putting tape across a number of chairs to maintain social distance.
  10. Place receptionists, clerks and officers behind plexiglass or other barriers while working with or interviewing individuals.
  11. Ensure that all employees have adequate numbers of masks and gloves.
  12. Have firm instruction that interviewing officers must use masks and gloves while interviewing.
  13. Reconfigure the back room space to allow all U.S.C.I.S. employees sufficient social distancing space, erecting barriers between them, and creating more common walkways to avoid crowding.
  14. Ensure that both customers and officers/clerks/receptionists wear disposable gloves at all times.
  15. Give the people being interviewed disposable pens if they did not bring their own that they can either keep or drop in a box for sanitizing and reuse.
  16. Sanitize the index fingerprint screen after every interviewee places his/her prints or eliminate the need to do such.
  17. Install more hand sanitizers all over the building and make sure that they are filled quickly upon being emptied.
  18. Put more paper towels in the bathrooms and ensure that they remain available so that people do not have to touch objects with their hands alone.
  19. Think about changing bathroom doors where needed so that they swing both ways and there is no need to grab the knob to enter or exit.
  20. Clean the bathrooms open to the public on an hourly or two-hour basis.

These are some but clearly not all of the ways that a safe experience can be had by everyone entering the reopened immigration offices.

Hopefully U.S.C.I.S. has a good plan that incorporates many of the above features when it reopens.  And above all, everyone from the top of the agency down to the security guards should be merciful and use common sense in dealing with people working in the buildings and the general public. People with appointments should not be turned away or looked upon with disapproval if late given the delays attendant to the pandemic, including lack of reliable transportation. Persons with appointments cannot be expected to come early to avoid being late as they would not be welcome to take up seating in any eating establishment with limited capacity or to congregate for hours outside the federal buildings.

 

Q&A’s published on Lawyers.com and the Epoch Times on May 1, 2020 1. Passport Application Needed Custody Papers 2. Wish to Change Status 3. Fiancé didn’t file Taxes, Will that be an Issue When I Sponsor Him for a Green Card?

1. Passport Application Needed Custody Papers

I’m in the process of getting a US Passport, but need custody papers to prove my US Citizen father had custody over me when I was a child. My parents are unmarried and I’m currently 22. What should I do?

Mr. Lee answers:
In looking at the law where a child is born out of wedlock to a US citizen, I assume that your father fulfilled the physical presence requirement in the US prior to your birth, and that a blood relationship has already been established. Other parts of the law appear to require that your father agreed in writing to support you until 18 years of age, and while you were under 18, you were either legitimated, your father acknowledged paternity, or paternity was established by court adjudication. You may wish to focus on those other aspects of the citizenship law.

2. Wish to Change Status

Girlfriend and child moved here from Ireland in January 2016. We married in March 2018. I wish to file for green cards.

Mr. Lee answers:
I assume that you are a US citizen and the child was under 18 on the date of your marriage. If so, you could file for them with a concurrent I-130 petition for alien relative and I-485 application to adjust status to permanent residence. Other paperwork would also have to be supplied such as your affidavit of support on form I-864 with proof of financial viability, their birth papers, your marriage paper, proof of US citizenship, and dissolutions of all prior unions on either side. Required medical examinations can be done now or presented at the interview. Generally speaking, you could expect an interview in approximately 10 months to a year.

3. Fiancé didn’t file Taxes, Will that be an Issue When I Sponsor Him for a Green Card?

I am a US citizen getting married to a Mexican national in Mexico. He came to the United States twice on work visas each for about 6 months. The first time he filed taxes but the second time he did not.

Mr. Lee answers:
I do not see your fiancé’s tax filings being the focus of his marriage based green card application. The focus is usually upon the bona fides of the marital relationship and other grounds of inadmissibility.

Q&A’s published on the World Journal Weekly on April 26, 2020 1. Selected for H-1B Registration, but I Do Not Know How Long the Job Will Last – How to Prepare? 2. In Light of the Changes for H-1B This Year, What Should We (The Company) Look Out For? 3. I have My I-601A Approved and Voluntary Departure Until July 1, 2020. When Should I Leave?

1. Selected for H-1B Registration, but I Do Not Know How Long the Job Will Last – How to Prepare?

I was selected for the H-1B registration last week, but do not know if the job will last because of the present Covid-19 pandemic and my employer is uncertain also. I am presently on my OPT until June 25, 2020. How can I best protect myself?

Mr. Lee answers,
Congratulations on your selection and sorry about the uncertainty of your situation. The best way to protect yourself is to be on your employer’s good side and hopefully not be laid off. Other than that, please note that even if your employer goes forward with filing the petition and the H-1B petition is approved prior to the beginning of the fiscal year on October 1, the H-1B status will only vest on that date. Assuming approval before the date, you can continue to work under your cap-gap status and change over to H-1B automatically on October 1. Hopefully you will continue to work for the employer past that date and have proof of doing so – payslips – in the event that you are laid off. You are then eligible for a 60 day grace period to find new H-1B employment, change status to another category, or prepare to depart the country. Best of luck to you!

2. In Light of the Changes for H-1B This Year, What Should We (The Company) Look Out For?

We are a company that sponsored 13 H-1B candidates for registration and had four selections. We are more wary of the process this year and would like some tips on what we should look out for because of the changed procedures.

Mr. Lee answers,
New changes to be aware of are that the jurisdiction of cases has changed and whereas previous location filings were dictated by the organization’s headquarters location, each H-1B registration now has the address of the U.S.C.I.S. service center to which the petition must be delivered. A copy of the H-1B registration notice must be placed in the application itself, preferably on top. Because of the coronavirus, U.S.C.I.S. is not insisting upon a “wet” signature and will instead accept one that is not original although it reserves the right to later request the original “wet” one. There is no indication thus far that U.S.C.I.S. will extend the deadline of 6/30/20 for organizations to submit the H-1B petitions, and so those should be filed in by that date. In point of fact, petitions should be sent in as quickly as possible (they must of course be thoroughly documented and completed with care) as such could allow organizations the opportunity to correct errors if petitions are rejected by U.S.C.I.S. and there is sufficient time prior to 6/30/20 to correct and resubmit the petitions. (In previous years with the H-1B selection occurring in a five business day window with full petitions, any technical errors causing rejection were fatal).

3. I have My I-601A Approved and Voluntary Departure Until July 1, 2020. When Should I Leave?

I entered the United States from Mexico in 2001 by sneaking in after flying there from China and am married to a green card holder and we have two children. She petitioned for me and my I-130 petition was approved and I-601A waiver application also approved last year. I was in deportation proceedings, and with my lawyer I got my voluntary departure until July 1, 2020. Now my lawyer tells me that the US Consulate in Guangzhou China is closed for visa appointments and he does not know when my appointment can be scheduled for the immigration interview. Should I leave around June 26-July 1?

Mr. Lee answers,
The choices would appear to be trying to get an extension of the voluntary departure from ICE or leaving on time. There is no telling what the state of ICE will be in June to entertain extension requests because of the present pandemic. The consulate in China may also be up and running by that date for visa interviews. I further note that an extension request is not automatically granted and may be denied. On the other hand, you have the certainty of leaving without an order of removal if you leave by July 1, 2020. Under present-day circumstances in which there are fewer and fewer flights to China, you should think seriously about leaving and booking your passage in the early part of June so that you have a chance to recover if there is a flight cancellation or other mishap which prevents you from taking the flight. I also note that upon your return, you may find that time will have to be consumed in quarantine and internal travel within China to the U.S. consulate in Guangzhou.

Q&A’s published on Lawyers.com and the Epoch Times on April 17, 2020 1. How Long Immigration Take? 2. My Boyfriend Was Coming Over Here and Got Detained 3. How Do I Get My Spouse’s New Name Updated on Her H-4 Visa Approval Notice?

1. How Long Immigration Take?

My brother applied for my sister and her 3 kids and husband. He applied for her case in 2011. I just wanted to know that my sister’s son has blood disorder and hard for her to get treatment in Pakistan. Is there any way we can get her case to done little faster so her son can have good treatment in USA?

Mr. Lee answers:
Unfortunately there is no way that the F-4 sibling petition can be speeded up because your sister’s son has a blood disorder for which treatment is difficult to obtain in Pakistan. Your sister and her husband could attempt to have the child apply for a B-2 visa for medical treatment in the US. That being said, the US Consulate would have to be assured that the costs of the treatment would be able to be covered by the family or donors. With a priority date in 2011, your sister likely has to wait another 4 years to immigrate.

2. My Boyfriend Was Coming Over Here and Got Detained

This is the first time he has ever been detained.  I would like to know if I can still get him a fiance Visa? We want to get married and he was coming to me to get married. I am a US citizen and he has never been in any trouble with the law. Will this make it harder?

Mr. Lee answers:
Being detained by Immigration will usually make a petition for fiance visa or permanent residence harder than usual. Whether you can still apply for a fiance petition will depend upon what happened or will happen at the detainment by DHS. You may wish to consult with an immigration lawyer with full details of everything that has happened to your boyfriend. If you have papers, you should bring them along to the consultation.

3. How Do I Get My Spouse’s New Name Updated on Her H-4 Visa Approval Notice?

My spouse is on H4 and after that she had name change on her new passport. How do I get her new name updated on visa approval notice?

Mr. Lee answers:
I am not sure that your spouse needs to have her new name updated on the H-4 approval notice. I also do not know of a specific application or petition by U.S.C.I.S. for that specific purpose. Perhaps your spouse could carry the marriage certificate when she travels and comes back to the US. On the next application to U.S.C.I.S., she could apply under the new name.

Article: The Importance of Setting the Record Straight on East Coast Infections – It’s the Europeans; Why not just excuse the LCA posting requirement during the Pandemic?

As published in the Immigration Daily on April 16, 2020

Setting the Coronavirus Record Straight for East Coast Infections as European and not Asian is Important

In our article of March 20, 2020, “Repeatedly Calling It a Chinese Virus Is Racist and a Deflection of Blame,” we asked that President Trump stop calling the coronavirus a Chinese virus as that was inflaming hatred towards Asians in a country with a history of prejudice, violence, and exclusion towards Chinese. There are now a plethora of articles in newspapers with detailed descriptions of discriminatory and violent acts against Asians including one by the Anti-Defamation League detailing 44+ reported incidents through April. Mr. Trump should be reminded that his assignation of blame will turn many Asian-Americans against him when it comes time to vote in November. He has a chance, however, to now change the narrative and remove most of the stigma from Asian-Americans. Recent studies by the Icahn School of Medicine at Mount Sinai and the NYU Grossman School of Medicine have identified the coronavirus laying waste to the country from the East Coast as originating in Europe through genetic analysis of viral samples. Dr. Anthony Fauci, the leading disease expert and director of the National Institute of Allergy and Infectious Diseases, said that “Given the travel and the air traffic from anywhere in Italy, but also particularly northern Italy, it’s just not surprising that unfortunately and inadvertently New York was seeded before they really knew what was going on.” While the coronavirus originated in China, it is now officially a misnomer to call it a Chinese virus where the major number of infections and deaths in the U.S. originated from Europe. As the number of deaths continues to mount in this country, Mr. Trump’s past insistence on referring to the virus as Chinese has even more significance as it continues to resonate and appeal to the dark nature of people to strike out, especially those who have lost someone close.  This country’s Asians are a ready target being perceived as vulnerable, non-violent, and easily identified by the color of their skin. Europeans on the other hand generally do not stand out except when they speak and there is not the ingrained prejudice against them as with the Chinese. So since Mr. Trump inadvertently or purposefully touched off a flame of resentment that burns to this day, we believe that he owes it to the Asian communities in the United States to make a clarification now.

Why not just excuse the LCA posting requirement for those working from home at this time?

In the Covid-19 related FAQs Rounds 1and 3 by the Department of Labor, the Department made clear that the Labor Condition Application (LCA) worksite notice would still have to be posted for H-1B workers remotely working from home. In the first FAQ of March 20, 2020, the Department said that where workers perform the work elsewhere in the same area of intended employment, the employer must provide either electronic or hardcopy notice at the new worksite locations meeting the content requirements for 10 calendar days unless direct notice is provided such as an email notice. It said that if the employer could not provide a hardcopy notice of the LCA filing due to the pandemic, the regulations allow electronic notice by any means ordinarily used to communicate about job vacancies to employees in the occupational classification in the area of intended employment, and such could include the employer’s website, electronic newsletter, intranet or email – that email notification is only required once and does not have to be provided for 10 calendar days. The FAQ also extended the time that such a notice would be considered timely to no later than 30 days after the worker begins work at the new worksite locations (normally notice is required to be posted prior to the worker moving on to the new site). In the third FAQ of April 9, 2020 (Second FAQ related to H-2A visas), the Department made four points advancing and not retreating from the notice requirement during this time of disease. 1.)  It expanded on employer requirements for situations that did not involve remote employment in the area of intended employment, and instead involved short-term placements of 30 or 60 days outside the area – that the employer could place the H-1B worker for up to 30 workdays in one year and up to 60 days if the person’s place of residence was inside the area of intended employment so long as the employer was in compliance with wages, working conditions, strike requirements, and notice for worksites covered by the approved LCA. There would also have to be no strike or lockout at the short-term placement location; and the employer would have to pay lodging costs, costs of travel, meals and expenses for both workdays and non-workdays.; 2.)  It defined the area of intended employment as within normal commuting distance to the place of employment with any place within the Metropolitan Statistical Area (MSA) deemed to be within normal commuting distance even if it crossed state lines; 3.)  It instructed that if an employer instead filed a new LCA for work sites outside the area of intended employment or materially changed the terms and conditions of employment, it would need to file an amended or new H-1B with U.S.C.I.S.; and 4.) It admonished that the employer’s treatment of H-1B personnel must not adversely affect the working conditions of similarly employed US workers and the employer had to offer the same flexibility to US workers similarly employed that it was offering to H-1B workers including telework from home within the area of intended employment or where the employer was offering to move H-1B employees outside of that area.

Although there is great interest in protecting the American job market, the insistence on maintaining the same notice requirements for new locations in the current time of crisis seems strained and the Department may still wish to reconsider its position. Where working from home is involved, one of the options is for the employer to post the notices at the H-1B holder’s house or apartment for 10 days. Is there any practical use in doing so where the two notices will likely only be seen by the employee, and perhaps spouse, children, and family dog if they exist? There is also the problem of employers in nonessential businesses even  being able to go into their offices where files are stored to  retrieve employee information or work on the notification procedures much less updating the public access package, especially when they are supposed to be sheltering in place in most parts of the country. As of the time of this writing, only five states, Arkansas, the Dakotas, Iowa and Nebraska are not under stay-at-home orders.  Common sense seems to dictate a waiving of requirements where attempting to comply places those in danger who must leave home to go to their businesses.