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How US Employers Handle Delayed USCIS Receipts for H-1B, TN, L-1, STEM EADS, and Other Business-Related Petitions: Communication and Planning Are Essential
Normally, employers filing H-1B, TN, L-1, E-2 STEM EAD, I-140, and other business-related petitions with USCIS see receipts within 7-10 business days. Receipts allow them to track progress of cases and timely update I-9s documenting continued work authorization for their international personnel. Since the onset of the COVID-19 pandemic, USCIS has let employers know that receipt notice issuance will be delayed by 8 weeks or longer. Employers should communicate these new expectations to their managers and international employees, and plan for potential gaps in employment.
How This Affects Employers:
1. Employers Experiencing Difficulty Track Cases Should Proactively Communicate with Managers and International Employees
Employers will face difficulty in tracking cases without receipt notices. Employers should consider letting managers and international employers know that receipts will take approximately 8 weeks (or longer) to be issued. Handling expectations proactively will help to prevent further uncertainty and anxiety, and will save time.
2. Employers Need to Plan for Potential Gaps in Employment Authorization
Normally, a receipt notice is a useful tool for employers to document employment eligibility in change of status cases such as F-1 to CAP H-1B or H, L-1, E, TN, as well as extensions including employment authorization documents (“EADs”) extensions from OPT to STEM OPT. Lack of a timely received receipt notice may cause uncertainty relating to continuous work authorization for international employees and possible gaps in employment authorization. Some EADs are automatically extended if the employee provides a receipt notice of the timely filed extension of employment authorization. Delays in receipt notices may mean large gaps of time where employees cannot prove they have filed an extension/renewal of their EAD. This puts employers in a tough spot to demonstrate ongoing employment authorization for these workers as they may find themselves unable to update I-9 showing continues work authorization for their international employees. Employers should make contingency plans, such as updated I-20s with DOS or other available options to address the potential gap.
3. Employers Should be Careful Not to Make Material Changes in Employment Until USCIS Issues Receipts for H-1B Amendments
Employers who file H-1B amendments to update USCIS regarding material changes to employment for H-1B international personnel, including worksites, position duties, etc. normally planned on making changes promptly as receipts were typically available within a couple of weeks. The best practice is to wait to make the changes to employment until the receipt notice is issued. Let managers and employees know that the timing of the material changes to a new location or new position will need to wait for up to 8 weeks or longer after the employer files a petition to amend.
Leyla McMullen
Business Immigration Attorney MDIVANI CORPORATE IMMIGRATION LAW FIRM
NOT LEGAL ADVICE: This article is for educational purposes only, it is not legal advice that may be applicable to our situation
The information provided here does not constitute legal advice. It is general information regarding law and policy that may be applicable to your particular HR issue or legal problem. Information provided in this blog, or any of our other public posts, does not create an attorney-client relationship. For specific advice you can rely upon, please contact your attorney.