The USCIS has released a new memo describing its plans to implement and apply the Simeio Solutions case and it provides some relief for employers. The new memo effective as of July 21, 2015 states that the Simeio rule will not be applied retroactively. Changes in work-site location that occur after April 9th remain impacted. The memo also provided until Jan 15, 2016 to cure any moves. We applaud the USCIS for taking into consideration the input provided by its stakeholders and taking this remedial action.
In a letter made public recently, IBM responded to an inquiry made by Senator Grassley regarding the use of H-1b workers in light of lay-offs by IBM in Senator Grassley’s home state of Iowa. Senator Grassley has been an outspoken critic of the H-1b program and legal immigration in general so his inquiry to IBM was not surprising and, from my point of view perfectly appropriate. The spirit of the H-1b program, if not the law, should not permit H-1b workers to replace laid-off US workers. As part of their response, IBM sought to distance itself from others who heavily use the H-1b program and have a much higher percentage of H-1b workers. IBM puts its % of H-1b workers at 10% or less. In calling for an expansion of the H-1b program, IBM reminded Senator Grassley that the current limitations of the program were leading to the loss of US jobs and greater outsourcing. Given his historical position on the H-1b program, it is doubtful that Senator Grassley was in any way, swayed by the arguments being made by IBM but, it is nice to see US companies defend their H-1b programs.
As H-1b cap rejections arrived in our office en masse last week and this week, it was quite a sobering sight. Selfishly, for our firm because those rejected boxes represented literally 100’s of cases that would never be fully billed, never turn into green card cases, and never refer their friends. For the U.S. companies that had interviewed the candidates and selected them as being the best person for the job, they were losing out on a talented new employee. For the H-1b worker, many were losing out on the dream of working in the U.S., joining friends or family that may have immigrated here previously, or simply not realizing the adventure of a new career in a new country. To the U.S. in general, the rejections of some 150,000 plus professional workers, many with STEM degrees, the economic loss is staggering. CNBC ran a nice article about a month ago on the economic loss caused by a broken US immigration system. If you haven’t read it, check it out. Regardless of one’s perspective, rejected petitions represent a loss.
A few weeks ago the United States District Court denied Save Jobs USA’s motion for a temporary injunction of the H4 EAD program. Save Jobs USA has now moved for judgment on all counts in its complaint. Save Jobs USA continues to argue that the new rule creates more competition for U.S. employees from H-1B workers and potential competition from H-4 visa holders with the new EAD. Save Jobs USA also alleges that the rule goes beyond DHS’s authority because the regulatory definition of the H-4 status doesn’t provide any permission to work. We will provide more updates as they become available.
In a story sure to get the attention of legislators in Washington D.C., and in my humble opinion rightly so, The New York Times ran a story today about H-1b workers being placed at Disney and the U.S. workers they were replacing being required to train them. The story was picked up and ran on the front page of msn.com and many other news outlets. Maybe this will be the impetus for Congress to get serious about immigration reform and craft legislation that recognizes the increased need for H-1b workers and provides for the protection of U.S. workers. No one should be asked to train their cheaper foreign replacement. At a time when the unemployment rate for IT workers is under 2% and we just had over 230,000 H-1b visa petitions filed for only 85,000 spots, this black eye on the H-1b program may be coming to light at the right time to force reform.
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 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.