USCIS has issued its final guidance on when to file an amended or new H-1B petition when a change in work location occurs. As you may remember, on April 9, 2015, the Administrative Appeals Office (AAO) issued a decision in Matter of Simeio Solutions, LLC, requiring an amended H-1B petition to be filed if there is a change in work location that would require a new Labor Condition Application (LCA) to be filed. USCIS had initially issued guidance on this issue, but thereafter allowed for comments leading to the final policy below. Continue reading
Last week, as part of the President’s November 2014 Executive Actions, the White House issued a report outlining interagency recommendations to fix our broken immigration system, including many of the issues surrounding employment-based immigration.
The recommendations in this report are based on an assessment of options to streamline and modernize our legal immigration system (conducted by Department of State and Department of Homeland Security). Assessments were based on information received from the Request for Information that was published in the Federal Register in December 2014. The overall goal here was to get as much input as possible from different interest groups/stakeholders: visa applicants, employers, the general public, labor groups, etc.
Regarding employment-based immigration, the recommendations made should (1) help ensure all immigrant visas authorized by Congress are used, (2) better account for visa availability for those wanting to adjust their status to lawful permanent resident while remaining in the U.S., and (3) provide for more job flexibility/portability for those non-immigrant workers waiting for priority dates to become current.
Some recommendations concerning our employment-based immigration system include: Continue reading
We have received some good news today: Beginning today (July 13, 2015), USCIS will resume accepting premium processing requests (Form I-907) for all Form I-129, Petition for a Nonimmigrant Worker, H-1B extension of stay petitions!
On May 19, 2015, USCIS announced that premium processing service would be suspended for Form I-129 H-1B extension of stay petitions from May 26, 2015 to July 27, 2015 in order to implement the Employment Authorization for Certain H-4 Dependent Spouses final rule in a timely manner and begin adjudication of applications for employment authorization filed by H-4 nonimmigrants under the new regulation. Premium processing remained available for all other types of Form I-129 H-1B petitions during the temporary suspension.
USCIS has now determined that its workload will allow them to resume premium processing service for H-1B extension of stay petitions on July 13, 2015.
The PERM process focuses on testing the U.S labor market within the job opportunity’s geographic area of employment to certify that U.S. workers are not displaced by hiring a permanent foreign worker for the job. (Please see the following for an overview of the PERM process: PERM FAQs) An issue that often arises in PERM is trying to get applications certified for positions that do not necessarily fall within the company’s geographic area of intended employment. This can be the case for employers that permit/require telecommuting or require their employees to work at unanticipated locations across the U.S. Continue reading
UPDATE: June 29, 2015
On June 26, 2015, DOS has stated:
- All visa-issuing embassies and consulates are now back online. They are scheduling visa interviews and issuing non-immigrant and immigrant visas.
- They have issued more than 300,000 non-immigrant visas this week. DOS anticipates backlog will be gone by this week.
- They are still experiencing problems with some online immigrant visa application forms. We are working around the clock to correct the issue.
When an employer files a PERM application on behalf of a beneficiary, certain documentation must be maintained, including a document called a Recruitment Report (RR). This RR must contain, among other things, the employer’s lawful reasons for rejecting U.S. workers who applied for the position. If a case is audited after the PERM application is filed, the employer will have to submit this document to the Officer assigned to the case.
With this in mind, I would like to tell you about a case that was recently decided by the Board of Alien Labor Certification Appeals (BALCA) (This Board handles PERM denials). The case is called, Matter of Presto Absorbent Products, Inc, 2012-PER-00775 (5/26/15). Continue reading
The Department of Labor (DOL) issued PERM statistics for the first 6 months of 2015 (October 01, 2014 to March 31, 2015), and it looks like filed PERM applications are on the rise and India continues to top the list of PERM applications certified so far this year!
Review of Applications Certified in 2015 so Far: Continue reading
USCIS has released FAQs for H-4 EADs. Eligible individuals may begin applying for the EAD on May 26, 2015. If granted employment authorization,H-4 dependent spouses will receive a Form I-766, Employment Authorization Document (EAD), as proof of that authorization.
Important Information Gathered from FAQs Continue reading
UPDATE 06/08/2015: USCIS has confirmed that the temporary suspension of premium processing for H-1B extensions applies to any H-1B petition requesting an extension of stay for the beneficiary regardless of whether the petition is filed by the same employer or is requesting a change of employer.
Starting May 26, 2015, U.S. Citizenship and Immigration Services (USCIS) will temporarily suspend premium processing for all H-1B Extension Petitions until July 27, 2015 in order to implement the H-4 EAD rule in a timely manner and to adjudicate EAD applications filed by H-4 non-immigrants. USCIS will continue to premium process H-1B Extension of Stay petitions filed with Form I-907 premium requests prior to May 26, 2015. Note that premium processing will still be available for all other Form I-129 H-1B Petitions including petitions subject to the H-1B cap that are requesting a change of status or consular notification. USCIS will refund the premium processing fee if:
- A petitioner filed H-1B petitions prior to May 26, 2015, using the premium processing service, and
- USCIS did not act on the case within the 15-calendar-day period.
Just as USCIS is preparing for May 26th, anyone who is planning on taking advantage of the new regulations should begin preparing the documentation needed in order to file the EAD application. For more on who qualifies for an H-4 EAD and what is needed to apply, please visit H-4 EAD Specifics!
UPDATE 05/27/2015: USCIS is now accepting comments on the guidance it issued on when to file an amended H-1B petition after the AAO decision, Simeio Solutions.
USCIS has instructed that all comments on the guidance be sent to firstname.lastname@example.org. For complete information on the comment process, visit the Feedback Opportunities section of www.uscis.gov. The final date for comments is Friday, June 26, 2015.
UPDATE 05/22/2015: USCIS has issued guidance on when to file an amended H-1B petition for a change in work location.
Filing Amended H-1B Petitions
- “If your H-1B employees were changing worksite locations at the time of the Simeio Solutions decision, you have 90 days from the date of this web alert (May 21, 2015) to file amended petitions for H-1B employees who changed their place of employment to an MSA or area of intended employment requiring coverage by a new or different LCA than that submitted with the original H-1B petition. Therefore, if you have not filed an amended petition for an H-1B worker who moved worksite locations before May 21, 2015, you have until August 19, 2015 to file an amended petition.”
- “If your H-1B workers changed their worksite location before the Simeio Solutions decision, USCIS will not take adverse action against you or your employees if you, in good faith, relied on prior non-binding agency correspondence and did not file an amended petition due to a change in an MSA or area of intended employment by May 21, 2015. However, as noted above, you must now file an amended petition for these H-1B employees by August 19, 2015.”
- “If you do not file an amended petition for these employees by August 19, 2015, you will be out of compliance with USCIS regulation and policy and thus subject to adverse action. Similarly, your H-1B employees would not be maintaining their nonimmigrant status and would also be subject to adverse action.”
- “If your amended H-1B petition is denied, but the original petition is still valid your H-1B employee may return to the worksite covered by the original petition as long as the H-1B employee is able to maintain valid nonimmigrant status at the original worksite.”
- “If your previously-filed amended H-1B petition is still pending, you may still file another amended petition to allow your H-1B employee to change worksite locations immediately upon your latest filing. However, every H-1B amended petition must separately meet the requirements for H-1B classification and any requests for extension of stay. In the event that the H-1B nonimmigrant beneficiary’s status has expired while successive amended petitions are pending, the denial of any petition or request to amend or extend status will result in the denial of all successive requests to amend or extend status.”
For more information, please visit:USCIS Guidance on When to File an Amended H-1B Petition after the Simeio Solutions Decision.