Business Immigration Monthly - June 2015

Date: 6/3/2015
 Business Immigration Monthly - June 2015

USCIS ISSUES GUIDANCE ON H-1B AMENDED PETITIONS REQUIRED BEFORE CHANGING WORKSITES

USCIS ISSUES

The US Citizenship and Immigration Services (USCIS) issued agency guidance clarifying the holding of an Administrative Appeal Office (AAO) precedential decision, Matter of Simeio Solutions, LLC, issued in April. The case held that a change in the employee's work location requiring a new Labor Condition Application (LCA) would constitute a material change in the conditions of the employment, thus requiring the employer to file an amended H-1B petition with the USCIS. This case presents nothing new. The USCIS California Service Center has been previously adjudicating cases in this way prompting many employers to take more conservative measures and instituting immigration policies in line with the new rule.

Matter of Simeio Solutions, LLC involved an H-1B employee that was not working at the work location listed on the H-1B petition. The USCIS discovered after a USCIS Fraud and Detection and National Security (FDNS) site visit that the employer had vacated the work location listed on the H-1B petition. After the USCIS issued a Notice of Intent to Revoke the H-1B petition, the employer submitted two new LCAs arguing that it had complied with its obligations under the LCA regulations since the employee was working at these new work locations for which it had obtained new LCAs. The AAO disagreed and held that this change in work location constituted a material change in the conditions of employment since the employee was transferred to work locations that would require new LCAs and the new LCAs approved by the U.S. Department of Labor (DOL) had not been submitted to the USCIS with an amended H-1B petition. Thus, whenever a new LCA was required for a worksite not included in the original H-1B petition, an employer was obligated to file an amended H-1B petition before the employee began work at the new worksite.



Employers had previously relied on a Letter from Efren Hernandez III, former USCIS Director of Business and Trade Branch, issued in 2003 which stated that there was no material change (and thus no requirement to file an amended H-1B petition) when an employee is moved to a worksite for which an employer has already obtained a LCA, even if that LCA had not been filed with the H-1B petition. The Letter concluded that the employer had already satisfied its obligations with respect to the LCA regulations at the time of filing the second LCA. Matter of Simeio Solutions, LLC invalidates and supersedes the Efren Hernandez Letter.

The USCIS' newly issued guidance outlines how Matter of Simeio Solutions LLC will be applied going forward. Employers have until August 19, 2015 to file H-1B amended petitions for a change in work location that occurred during or before the Matter of Simeio Solutions, LLC decision. The USCIS has clarified that it will not take adverse action against employers that relied upon the Efren Hernandez Letter or any other agency guidance and have not filed amended H-1B petitions by May 21, 2015 (the date of the USCIS' guidance) for changes in work location that occurred before the case was decided. However, they must file amended H-1B petitions by August 19, 2015. If an amended H-1B petition is not filed by that date, an employer will be in violation of the new rule and their employee will not be maintaining their H-1B status. If an employer has an amended H-1B petition pending with the USCIS, the employer can file a second, third, etc. amended H-1B petition, in accordance with this guidance, even if other H-1B petitions remain pending. Every petition will be adjudicated on its own merits.

The case prompted many questions such as What is the scope of Matter of Simeio Solutions, LLC? The case only applies to H-1B petitions where the new work location is outside of the area of intended employment of the approved LCA filed with the current H-1B petition. If the new work location is in the same area of intended employment as the work location indicated on the H-1B petition, there is no obligation to file a new LCA (since the wage data is identical) and therefore there is no material change. For example, an employer files an H-1B petition listing a Chicago, Illinois address. The employee is subsequently transferred to a worksite in Naperville, Illinois. Both cities are within the same area of intended employment and therefore, the employer is not required to file a new LCA (and thus an amended H-1B petition). An employer moving an employee within the same area of intended employment may not be required to file a new LCA and amended H-1B petition, however, it will have other obligations under the LCA (such as posting requirement).

There are some situations where Matter of Simeio Solutions, LLC would not apply. These include short-term placements and non-worksite locations. Employers should consult with counsel to ensure that they are complying with the new rule and to help them understand when they need to file an amended H-1B petition.

Lastly, H-1B portability still applies and will continue to provide employers with flexibility in changing work locations. Therefore, as long as the employer and employee meet the portability requirements, the employee can begin work at the new worksite as soon as the amended H-1B petition is received by the USCIS. Employers may still experience delays since the LCA must be certified at the time it is filed with the amended H-1B petition. The Department of Labor takes approximately seven days to certify an LCA, therefore, employers may experience a minimum delay of a week in filing the amended H-1B petition.

UPDATE ON EXPANDED DEFERRED ACTION FOR CHILDHOOD ARRIVALS (DACA) AND DEFERRED ACTION FOR PARENTS OF AMERICANS AND LAWFUL PERMANENT RESIDENTS (DAPA)

The U.S. Court of Appeals for the Fifth Circuit rejected the Department of Justice's request to lift an injunction for two new immigration programs that were set to start this year. In November 2014, President Obama announced a series of executive actions on immigration, one of which was the expansion of the Deferred Action for Childhood Arrivals (DACA) program and the implementation of a new program called Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). In December 2014, 26 states filed a lawsuit in the Southern District of Texas arguing that by issuing these directives, the President had violated the Administrative Procedures Act and had overstepped his power. The court issued a preliminary injunction blocking the implementation of both programs until the case could be decided. The U.S. Department of Justice appealed the injunction to the U.S. Court of Appeals for the Fifth Circuit in New Orleans. Last week the Court of Appeals rejected the request to stay the injunction. Therefore, neither program will be implemented until the underlying case can be decided, a process which may take years of litigation.

The first program, expanded DACA, was set to be implemented in February 2015 when the US Citizenship and Immigration Services was to begin accepting applications. This expanded DACA would remove the age restriction from the original DACA program that was implemented in 2012 and allow undocumented individuals who have been continuously residing in the United States since January 1, 2010 to receive protection from removal and permission to apply for employment authorization. The original DACA program, among other requirements, contains an age restriction that the individual must have been under 31 years old as of June 15, 2012. The DAPA program was set to be implemented six months after the President's announcement and would grant the same benefits as the original DACA program, namely, protection from removal and the ability to apply for employment authorization to undocumented parents of U.S. citizens and Lawful Permanent Residents. The receipt of an employment authorization document has numerous benefits, such as the ability to obtain a social security card and potentially a driver's license or state identification, depending on the state of residence. The original DACA program that was implemented in 2012 remains in effect and those that are eligible can continue to renew this benefit.

USCIS SUSPENDS PREMIUM PROCESSING FOR H-1B EXTENSIONS UNTIL 7/27/15

The USCIS has just announced that it has suspended premium processing for H-1B petitions requesting an extension of stay through July 27, 2015. This suspension is only limited to H-1B petitions with an extension of stay request, not H-1B amended petitions without an extension request, H-1B change of status petitions, H-1B consular processing petitions and nonimmigrant petitions seeking/extending a nonimmigrant status other than H-1B status. Premium processing is an upgraded process through which the USCIS will conduct an initial review of a petition within 15 calendar days in return for an additional government filing fee of $1,225. During that 15-day period, the USCIS will either issue a request for evidence or adjudicate the petition. This delay in adjudication results from the implementation of new regulations allowing H-4 Dependent Spouses of H-1B work visa holders to apply for an Employment Authorization Document. The USCIS will begin accepting applications for this program on May 26, 2015.

The USCIS has indicated that it will continue to process H-1B petitions requesting premium processing prior to May 26, 2015, however, the USCIS has also stated that if it cannot review the case within the 15-day period, it will refund the premium processing filing fee. This means that all H-1B petitions requesting an extension of stay filed with premium processing that have already been filed or that employers will file prior to May 26, 2015 are potentially affected. Employers are reminded that the premium processing program does not guarantee 15-calendar day adjudication and that the USCIS has always reserved the right to return the premium processing fee if it is unable to review the petition within that timeframe.

JUNE 2015 VISA BULLETIN UPDATE

The Department of State (DOS) released its June 2015 Visa Bulletin which shows the availability of employment-based immigrant visa categories for the month of June. Below is a summary of the bulletin highlights:

  • The EB-2 India category continues to experience significant advancement from April 15, 2008 to October 1, 2008.
  • The EB-2 China category also continues to advance from June 1, 2012 to June 1, 2013.
  • The EB-3 India category advances only one week from January 15, 2004 to January 22, 2004.
  • The EB-3 World and Mexico categories advance one month from January 1, 2015 to February 15, 2015.
  • The EB-3 Philippines category sees a further retrogression from July 1, 2007 to January 1, 2005. The DOS has indicated that this retrogression is required to contain the use of immigrant visas this category for this fiscal year.
  • The EB-3 China category sees an advancement of four months from May 1, 2011 to September 1, 2011.
  • The EB-5 China category remains cut-off at May 1, 2013. The DOS has indicated that it is possible that this category will see no further advancement this fiscal year and that it may need to be retrogressed further.

Comparison to Prior Months

The following is a comparison of priority date movement since the inception of the current retrogression in 2007:

Dec 2007

Jun
2008

Aug 2009

Sept 2012

Jan 2015

May
2015

June 2015

EB-3 World

09/01/02

03/01/06

U

10/01/06

06/01/13

01/01/15

02/15/15

EB-2 China

01/01/03

04/01/04

10/01/03

U

02/01/10

06/01/12

06/01/13

EB-3 China

10/15/01

03/22/03

U

12/15/05

03/01/11

05/01/11

09/01/11

EB-2 India

01/01/02

04/01/04

10/01/03

U

02/15/05

04/15/08

10/01/08

EB-3 India

05/01/01

11/01/01

U

10/08/02

12/15/03

01/15/04

01/22/04

EB-3 Other Workers

10/01/01

01/01/03

U

10/01/06

06/01/13

01/01/15

02/15/15

FY2016 DIVERSITY VISA LOTTERY PROGRAM WINNERS CHOSEN

The Department of State (DOS) has posted the winners of the Diversity Visa Lottery Program for fiscal year 2016 on their website at: http://www.dvlottery.state.gov/ESC/ The Diversity Visa Lottery Program allocates for 50,000 immigrant visas "green cards" to be granted annually to foreign nationals that meet certain requirements from countries that have low rates of immigration to the United States. Last year, the DOS received over 9.3 million entries.

The DOS will not notify winners. Applicants must go to the abovementioned link using the confirmation number that they received at the time they submitted their application to check whether they were chosen. Applicants who have lost their confirmation number will not be able to check the status of their application and will have to apply for the next year's program. The case status check website is available until September 30, 2016.

If an applicant's entry was selected, the DOS case status website will provide further instructions on next steps. Selectees must submit a Form DS-260, Immigrant Visa Electronic Application online through the Consular Electronic Application Center (CEAC), prepare supporting documentation and attend an interview at their local US Embassy or Consulate. Applicants who are already present in the United States, may be able to process for their green card in the United States.

Individuals that were selected are reminded that they must act immediately to complete the process since not all selected entries are guaranteed a green card. The DOS notifies over 100,000 individuals that they were selected to ensure that the full 50,000 visas are used during the fiscal year. The program works on a first-come first-serve basis, therefore, selectees that either do not meet the program requirements or that wait too long to complete the process may not be able to obtain a green card.

H-1B QUOTA RANDOM LOTTERY COMPLETED FOR FISCAL YEAR 2016

The USCIS has announced that it had completed receipting of all H-1B petitions that were selected in the H-1B cap for fiscal year 2016. Similarly to last fiscal year, the cap was reached within the first week that the statutory cap opened. The USCIS received 233,000 petitions, more than the statutory cap of 65,000 visas for the regular quota and the additional 20,000 allotted for individuals who earned a U.S. Master's degree or higher. When the USCIS receives too many petitions for the limited number of visas available per fiscal year, it conducts a random, computer-generated lottery to choose which petitions it will accept and process.

All petitions that were not selected in the quota will be returned via regular mail to the mailing address listed on the petition within the next month or two. These returned petitions will include uncashed government filing fee checks. Employers should not assume that their petition was not selected in the quota until the employer receives an unprocessed petition in the mail. Employers can evaluate other work visa options, if any are available, for these individuals who were not selected in the quota.

NEW REGULATIONS ISSUED FOR H-2B PROGRAM

The Department of Homeland Security (DHS) and the Department of Labor (DOL) recently issued new regulations for the H-2B, Temporary Non-Agricultural Workers Program, that are effective as of the date of publication, April 29, 2015. The H-2B program requires employers to establish that their need for a foreign worker's services is temporary, that there are insufficient U.S. workers that are able, available, qualified and willing to accept the H-2B position and that the hiring of a foreign worker will not adversely affect the working conditions and wages of U.S. workers. The Departments published an interim final rule that outlines new requirements for the H-2B temporary labor certification, as well as a final rule that addresses the procedures for prevailing wage issuance. The new rules require that the recruitment be conducted after the filing of the Application for Temporary Employment Certification with the DOL. Additionally, the State Workforce Agency Job Order posting, and the posting of the position on a newly created electronic national job registry, must remain active until 21 days prior to the need of the H-2B worker versus the prior requirement that the Job Order be posted for only 10 days prior to the Application filing. The new interim final rule also requires that employers offer the H-2B position to former employees who are U.S. workers and has additional provisions addressing an H-2B worker and U.S. worker wages, working conditions and benefits. The rule also lowers the temporary need period from 10 months or less to 9 months or less and now defines full-time as at least 35 hours per week as opposed to 30. Both sets of regulations were issued after months of litigation in the H-2B program.

DHS FINALIZES REGULATIONS ON DSO AND F-2 AND M-2 VISA HOLDERS

The DHS finalized its regulations affecting the Student and Exchange Visitor Program (SEVP) to eliminate the maximum number of Designated Student Officials (DSO) that an academic institution may nominate and to allow dependent F-2 and M-2 nonimmigrants to engage in studies. The DHS had initially instituted caps on the number of DSOs that a school may have. The intention was to remove these caps until a time when the Student and Exchange Visitor Information System (SEVIS) became fully operational. The DHS now feels that the time is right and has removed these restrictions. Additionally, the DHS has implemented regulations allowing the F-2 or M-2 accompanying dependent spouse of an F-1 or M-1 student to engage in studies. This was previously prohibited unless the dependent spouse changed their nonimmigrant status to their own student status. The F-2 or M-2 spouse must enroll in classes that do not constitute a full course at a SEVP-certified institution. If the F-2 or M-2 spouse desires to engage in a full course of study, they will have to change their status to F-1 or M-1.

MFEM NEWS

Four (4) Masuda Funai Immigration Attorneys Named as Illinois Leading Lawyers

The Leading Lawyers Network recently announced attorneys who have been determined to be Illinois Leading Lawyers. Four of Masuda Funai's attorneys in its Immigration Practice Group were named Illinois Leading Lawyers in the field of immigration law. These attorneys are Ms. Kathleen Gaber, Mr. Bryan Funai, Mr. Dayne Kono and Mr. Bob White. Masuda Funai was the only law firm in the state of Illinois with four immigration attorneys named as Leading Lawyers. The Leading Lawyers Network surveys lawyers and asks them which of their peers and competitors they would recommend to a family member or a friend if the cannot take a case within their area of law. Based upon survey nominations and an approval by the Network's Advisory Board, only the top lawyers in their field are recognized as Leading Lawyers. With the most named Immigration Leady Lawyers in the State of Illinois, the Leading Lawyers Network continues to acknowledge the excellence of Masuda Funai's Immigration Practice Group.

Mr. Bob White of Masuda Funai's Immigration Practice Group is Reappointed to the American Immigration Lawyers Association's (AILA) U.S. Department of Labor (DOL) Liaison Committee

Mr. Bob White of Masuda Funai's Immigration Practice Group was recently reappointed to the American Immigration Lawyers Association's (AILA) U.S. Department of Labor (DOL) Liaison Committee. This is Mr. White's second year on this important AILA committee. This committee meets on a quarterly basis with U.S. Department of Labor officials in Washington, D.C. to discuss issues in the DOL's H-1B, H-2A, H-2B and PERM labor certification programs. Members of this committee, including Mr. White, also advocate for changes in these programs to make the programs more workable and user friendly for the business community. Previously, Mr. White has been a member of the AILA Verification Committee and Social Security Administration (SSA) Committee. Mr. White was also previously the Chair of AILA's Chicago Chapter.