Visas – H-1b, L-1, E, O, TN

USCIS Policy Memo on Amended H-1b Petitions

On May 21,2015, the USCIS issued new policy guidance for H-1b employers. This guidance was issued following the April 9th Simeio Solutions precedent decision from the AAO which determined that a change in employment outside the area of intended employment was a material change and required the filing of an amended petition. This ruling was a major departure from prior USCIS policy and practice. The May 21st USCIS memo was designed to explain how that new policy will be implemented. The memo makes the following points:
1. An amended petition must be filed BEFORE an H-1b employee can be moved to a new worksite outside the original area of intended employment.
2. A deadline of Aug 19, 2015 has been established for all employers to file amended petitions to reflect the worksite locations of any H-1b worker who has been moved from their original petition location.
3. If an amended petition is pending and a subsequent move is made, a 2nd amended petition can be made and an employee moved. There is no requirement to obtain a decision in the 1st case before filing the 2nd case.

The Simeio Solutions decision has a huge impact on employers in the staffing industry and now this memo requires that an amended petition must be filed before moving an employee, the impact grows. Further, with the memo making it clear that the new policy will be applied retroactively to existing H-1b workers, albeit, with a 90 day grace period, the negative consequences to U.S. employers will be even larger and, the benefit to the coffers of the USCIS will be as well. With an economic impact to U.S. employers easily exceeding $100 million annually, it is unclear how the USCIS decision makers believe that this change in policy is not in violation of the Administrative Procedures Act and should not have gone through the formal rulemaking procedure. Whether any company or trade association challenges this new policy on APA grounds is yet to be seen.

As a practical matter, H-1b employers should take the following actions:
1. Confirm the current worksite locations of all H-1b employees and determine if that worksite has changed from the original petition and, if necessary, take steps to file an amended petition prior to Aug 19, 2015.
2. Communicate to sales and deployment teams that any change in worksite location will take at least 10 days and there is an economic cost to said move that must be considered.

USCIS Releases info. for H-4 EAD’s

With a filing date fast approaching on Tues, May 26th, the USCIS finally released instructions for H-4 EAD cards. Please find the information and the FAQ.

USCIS Announces the Temporary Suspension of Premium Processing for H-1b Extensions of Stay

USCIS announced today that it will temporarily suspend the premium processing service for all H-1b extension of stay petitions filed on May 26, 2015 or after. This suspension will remain in effect until July 27, 2015. During this period of time, petitioners will not be able to request premium processing for H-1b extensions of stay. All premium processing extension of stay petitions that are filed before May 26, 2015 will be adjudicated through the premium processing service. Premium processing will also continue to be available to all other H-1b petitions, including those that are subject to the cap, those requesting consular processing, and those requesting a change of status for physicians who have received a J-1 waiver through the Conrad 30 program. USCIS announced that it is suspending the premium processing service for H-1b extension of stay petitions so that it can implement the new federal regulations that will allow certain non-immigrants on H-4 to receive employment authorization.

Suit over New H-4 EAD Rule

As we posted earlier, a lawsuit was filed in Federal court (Save Jobs USA v. U.S. Dep’t of Homeland Security) seeking to halt the rollout of the new rule which would allow H4 spouses to receive an EAD. Save Jobs has argued that there isn’t any statutory authorization for the new H-4 EAD rule and that Save Job’s members will be injured by this new rule because it will expand the number of nonimmigrant workers that its members will have to compete against. On May 12, DHS asked that the suit be dismissed for several reasons. The main contention of DHS was that “Indeed, they fail to submit a scintilla of documentary evidence supporting their claim that they have been ‘injured’ for purposes of Article III standing.”

The final H-4 rule is set to take effect May 26. However, no guidance has been issued on the procedures for the new rule and this lawsuit may be one of the reasons nothing final has been released yet. We will post more developments as they happen.

More about the H-1b cap lottery

Last week, Informationweek.com ran an interesting piece on the H-1b visa and the cap lottery. I would’ve added a sobbing CIO as the last slide but, aside from that, it helps to put the numbers into perspective. BTW We received some more cap receipts in today and no rejected filings yet so there remains hope but, hope is fading quickly and we expect to start receiving rejected filings this week.

Does the US Need High Skilled Immigration ?

The Information Technology and Innovation Foundation (ITIF) recently published an interesting article addressing this issue and offered arguments that you can use the next time someone shouts at you and says “don’t you know, we got plenty of high skilled US workers without jobs and we don’t need no more foreign workers”

H-4 EAD’s on hold ?

A Federal lawsuit was filed earlier this week seeking a halt to the rule allowing H-4 holders to obtain EAD cards. Stay tuned for developments.

USCIS updates date that premium processing of H-1b cap cases will begin

USCIS recently announced that it received 233,000 cap-subject H-1b petitions for the 2016 fiscal year. Initially, it stated that it would begin adjudicating cases that were filed through the premium processing service on May 11th, 2015. However, USCIS has updated this date to April 27th, 2015. The delay in reviewing these cases that were submitted through premium processing is due to the historic premium processing receipt requests.

233,000 :(

The USCIS today announced that it had received approx. 233,000 H-1b cap subject petitions to be included in the lottery for 85,000 visas. They further announced that the lottery had been completed. They did not indicate when receipts would be issued but, did remind everyone that they expected to begin processing premium process filed cases by May 11th. Whether this the volume of cases filed will spur Congress to act on legal immigration is unknown but, I’m not holding my breath.

AAO changes the game for staffing employers !

In a decision released last week, the AAO declared that a work-site location change outside of the original MSA requires the filing of an amended H-1b petition. This change will have significant impact on staffing cos., many whom have followed DOL and USCIS HQ guidance which supported the conclusion that only the filing and posting of a new LCA was required when an employee’s work site changed. The I-129 form itself declares that an amended petition is not required when changing the location of an H-1b employee if you have filed and posted an LCA at the new work-site prior to the move. It is not known whether USCIS HQ supports this AAO decision or will issue further clarifying guidance to essentially overturn this decision. In the meantime, this decision leaves employers in an era of uncertainty. HLG will be hosting a teleconference for clients on Fri. April 17th to discuss this topic. More details will be released early this week.