At long last, the DHS has published the final rule (regulation) allowing certain H-4 holders to apply for an EAD card. Eligibility requires the H-4 holder’s spouse to have an approved I-140 or to have already been approved for a 7th year extension under the AC21 rules. The rule goes into effect on May 26, 2015. Applications may not be filed early.
In Valorem Consulting Group v. USCIS, the United States District Court for the Western District of Missouri considered whether it was arbitrary and capricious for USCIS to grant an H-1b visa for only a one year validity period when the Beneficiary was expected to work on multiple projects for different clients. In this case, the District Court noted that the Administrative Procedures Act provides that it could only overturn USCIS’s decision if it was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” The District Court reviewed the case and noted that the record showed that the Petitioner was a consulting company that offered a broad range of professional services to its clients. The Beneficiary was expected to “provide consulting services that vary depending on the client’s needs.” Documentation from the Petitioner and from two end-clients was also submitted. The court found that USCIS initially denied the case on the basis that the evidence the Petitioner had submitted was insufficient to demonstrate that enough specialty occupation work would be available. USCIS had expressed “concern that at some point [the Petitioner] could assign [the Beneficiary] to work for a client on a project that no longer qualified as a ‘specialty occupation.’” After an appeal was initiated, USCIS overturned the denial and approved the case for a one year period. The court dismissed the remainder of the claims other than the validity of the one year period. In reviewing the case, the District court noted that the nature of the Petitioner’s business led to the conclusion that it could not “represent what [the Beneficiary] would be doing on a regular and recurring basis.” It also upheld USCIS’s reliance on the Neufeld Memorandum. It stated that the Beneficiary was expected to provide services for the Petitioner’s clients and “that these tasks varied in nature and duration, making it difficult for USCIS to confirm that [the Beneficiary] was entitled to an H-1b visa and, if so, for how long.” Consequently, the District Court determined that USCIS’s decision to provide only a one year validity period for the Beneficiary’s H-1b was not arbitrary or capricious.
Lost in the President’s plan to provide relief to millions of undocumented/illegal people here in the US were major changes that will be hugely positive for H-1b workers and employers alike. A summary will be posted later today and more details provided as they become available but, the highlights include: the end of retrogression for US based workers (well, almost); elimination of the need for most h-1b extensions; in many cases, the advantage of being EB2 vs. EB3 would be eliminated; clearer L-1b rules; and, greater portability for H-1b workers which means easier access to resources for US employers. Nice job Mr. President !
Recently, President Obama made remarks indicating that he wanted to make the H-1b program more efficient as part of the Executive Action that he has promised to deliver in light of Congressional inaction on immigration reform. His remarks immediately drew the ire of Senator Grassley who opined that the H-1b program should have a labor market test attached to it. In typical form, Senator Grassley falsely claimed that US companies lay off US workers in mass and then replace them with cheaper H-1b workers. It should be alarming to all advocates of legal immigration and business immigration reform that Senator Grassley would be the top Senator and carry tremendous weight over any immigration bill should the Republicans take control over the Senate. Hopes of U.S. companies being able to hire and retain the best and the brightest will be destroyed by a strong wind blowing from the corn fields of Iowa should the Senate change hands in the November election.
The DOL has published new prevailing wages which can be accessed at the FLCDatacenter. The new wages went into effect July 1st. These wages are the source used by the DOL in issuing prevailing wage determinations (PWD’s) utilized for PERM applications and certain other immigrant petitions. This on-line data is also commonly used by employers in determining the prevailing wage for H-1b petitions.