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.
The DOL has released updated PERM stats which reveal some interesting tidbits. The number of PERM applications received this year over the same time period in FY 2014 is up over 25%. Of cases where a decision has been reached, less than 10% have been denied. Over 30% of cases are currently in audit review and almost 10% of cases are pending an appeal. Although it seems like everyone claims to have been filed under EB2, almost 50% of cases were filed under EB3 standards.
Ever wonder how the priority date cut-offs are established each month and been curious how the priority dates can fluctuate so drastically as if they are mere sailboats adrift in the wind ? You are not alone. Recently, a Federal Court of Appeals raised serious questions about Department of State procedures used to establish the dates. The Appellate Court closed their opinion by saying that it is not deciding at this point whether or not the Department of State is acting illegally; it is only saying that “the consequences of State’s current operations are quite consistent with [the Plaintiff’s] allegations that [the Department of State] has inadequately heeded [section] 203(e)(1)’s priority principle”. Further proceedings were ordered and this case is worth keeping an eye on.
On April 9, 2015, the Administrative Appeals Office (“AAO”) issued a decision in which it discussed the meaning of “doing business” for EB-1 petitions. In Matter of Leacheng International, Inc., the Petitioner filed an Immigrant Petition for Alien Worker in the classification of multinational manager or executive. To qualify for this classification, it must be established that a petitioner has been doing business for at least one year. Doing business is defined as the “regular, systematic, and continuous provision of goods and / or services by a firm, corporation, or other entity.” See 8 C.F.R. § 204.5(j)(2). The Petitioner is an affiliate of an entity based out of Hong Kong. Both organizations are owned by a Chinese parent company. The Petitioner was responsible for importing and selling the parent company’s products in the U.S. Starting in 2012, the Petitioner began “providing marketing, sales, and shipping services in the United States pursuant to a service agreement with its Hong Kong affiliate.” The case was initially denied on the basis that the evidence “does not indicate ‘doing business’ with independent corporations or entities’ for a full year preceding the filing of the petition, but rather ‘only demonstrate[s] the shipment of goods from the foreign company to the U.S. company.” In reviewing the case, the AAO determined that there was nothing in the regulations that requires that a “petitioner for a multinational manager or executive must provide goods or services to an unaffiliated third party.” Rather, a petitioner may prove that it is doing business “by demonstrating that it is providing goods and / or services in a regular, systematic, and continuous manner to related companies within its multinational organization.” In reviewing the evidence, the AAO instructed that the totality of the record should be reviewed and “the fact that a petitioner serves as an agent, representative, or liaison between a related foreign entity and its United States customers does not preclude a finding that it is doing business.” This case provides important information on what types of activities will qualify as “doing business” for purposes of an EB-1 filing.
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.
Horno MSJ Ltd. Co. is a bakery in San Antonio, Texas which opened in March 2006. It is jointly owned by an elderly married couple. ICE served Horno with a Notice of Inspection (NOI) and subpoena on July 31, 2012. The inspection of the I-9s was scheduled for several days later. Horno presented 26 original I-9s and various other documents. After the inspection ICE served Horno with a Notice of Suspect Documents (NSD) and a Notice of Discrepancies in September 2012. A Notice of Intent to Fine (NOF) was served on March 5, 2013. ICE found that Horno failed to present nine Form I-9s and that the 26 I-9s presented were deficient. ICE fined Horno over 31K for the 32 violations. Horno argued that it was not required to present the nine Form I-9s since those individuals never showed up for work. However, the Administrative Law Judge found Horno was indeed liable since they paid these nine individuals to attend orientation, thus they were Horno’s employees and as such, Horno was required to have each individual complete Section 1 of the Form I-9 since the regulations require that it be completed on the first day of hire. Based on their size, the nature of the violations and the current status of the business, the ALJ ultimately lowered the fine to $14,600. The moral of this story is that if as an employer, you must make sure that you begin the Form I-9 process, especially if you pay applicants to attend orientation and/or training and make sure on that first day that they complete Section 1.
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.
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.
In a surprise to absolutely no one, the USCIS today announced that it had received petitions in excess of the 20,000 H-1b U.S. Masters cap and the 65,000 regular H-1b cap and a lottery would be held. They did not disclose the total number of petitions received and they did not disclose when the lottery would be held. Receipts will not be issued until after the lottery is held. We will provide further updates as they become available.