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United States Labor Immigration Law News and Analysis

H-1B Articles

PERM, H-1B and Prevailing Wage Case Processing Statistics from the Department of Labor (FY2015 Q3)

The Department of Labor has provided some updates for the third quarter of the Fiscal Year 2015 (April 1, 2015 to June 30, 2015) on their processing of PERM, H-1B LCA and prevailing wage determination cases and we are happy to share them with our clients and readers.

DOL Processing Statistics (Third Quarter, 2015 Fiscal Year)

PERM

According to the PERM case report, during the quarter, there were 20,289 new cases received (an increase of 5% from the prior quarter and almost exactly the same number of filing compared to the third quarter of the year prior), 16,890 certified (slight decrease over the previous quarter), 2,151 denied (significant increase of more than double compared to prior quarters based on comparable number of applications)  and 1,029 withdrawn (about the same as the prior quarter).

There are 63,097 applications pending as of June 28, 2015 which is largely unchanged compared to recent quarters .   Out of these cases, approximately 68% are in analyst review stage (increase by several percentage points), 22% under audit review (significant decrease, from 30% six months ago) and 9% on appeal (slight increase).

CILG Comment:  while these numbers indicate that the rate of filings and approvals remains more or less unchanged, the percentage of cases in audit stage has dropped significantly while the rate of denial has doubled.   This suggests that DOL is putting more effort on clearing audit cases and subsequently denying more PERM applications.

Prevailing Wage Determinations

The prevailing wage report provides some detailed breakdown of the rate of filings in addition to details about top employers, top occupations and top areas.   During the third quarter, there were approximately 39,000 prevailing wage determination requests filed — of those, 35,658 were for PERM cases (increase of 16% compared to prior year’s period), 1,771 were for H-1B cases (decrease of 7%) and 1,422 were for H-2B cases (increase of 31% year-over-year).     In terms of activity, 30,164 prevailing wage determinations were issued during the third quarter and the pending load has increased from 16,958  during the prior quarter to 23,528 in the third quarter of FY2015 which also represents an increase of 64% compared to the prior year’s period.

CILG Comment:   we are seeing a notable increase in the rate of prevailing wage filings, especially for PERM cases which is likely to result in a higher number of PERM applications and, ultimately, longer PERM processing  times.   Additionally, the number of prevailing wage applications pending at DOL is significantly higher, which suggests longer prevailing wage request wait times.

H-1B/LCA

The H-1B/LCA report also provides a breakdown in the rate of filings, in addition to some details about the top LCA filers and the top positions and geographic areas.    Since this quarter fell entirely outside of the H-1B cap filing season, the number of LCA filings is lower compared to other quarters during the year, and especially Q2 of 2015.  Even then, there were 115,837  H-1B LCA filings in the third quarter, noting a significant decrease from the almost 300,000 LCAs filed during the second quarter of the year (due to the H-1B cap season).   However, compared to the same period of last year, there is a fifteen percent increase in the number of LCA filings.   During the quarter, there were 114,984 LCAs certified for 223,859 positions (one LCA can include more than 1 position).

According to DOL, 100% of the LCAs are processed timely within seven days of receipt.     The rate of LCA denial is fairly low (2,678 out of 126,307 determinations) and the main reasons remain (1) FEIN mismatch or failure to verify before LCA filing  or (2) prevailing wage tracking number issues.

Conclusion

The third quarter of the FY2015 shows a significant increase in the number of DOL filings in a number of categories.  Perhaps most notable is increase in the PERM denial rate, likely as a result of DOL’s efforts to decrease the share of PERM cases in audit stage.   Similarly, the PERM prevailing wage requests and the overall number of pending prevailing wage applications pending rose significantly over the prior year period, signaling continued strong rate of upcoming PERM filings and possibly longer prevailing wage processing times.   Thus, in turn, is likely to translate increase in the PERM case processing times.    We are hopeful that DOL would continue to work on decreasing its load and processing times, especially for the PERM cases (see the most recent PERM processing times report).

We will continue monitoring DOL processing metrics and report any notable developments and trends.      Please visit us again, contact us, or subscribe to our free weekly newsletter to ensure that you obtain this and related immigration-related news and announcements.

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USCIS Issues Policy Guidance on Simeio H-1B Compliance When Changing Worksites

The April 9, 2015 AAO decision In Matter of Simeio Solutions, LLC (PDF copy) put many H-1B employers (mainly those who place H-1B workers at third-party worksites) in a position to scramble and assess their current level of compliance with the H-1B regulations, as they would be interpreted by USCIS in accordance with the Simeio Solutions decision.      Earlier, on May 27, 2015, USCIS issued a draft policy memorandum attempting to provide some widely-anticipated guidance on when an H-1B is required together with a deadline of August 19, 2015 for compliance.    However, in a July 21, 2015 Policy Memorandum, USCIS has provided an amended (and what we believe would be the final) set of instructions as to how USCIS would treat H-1B petitions where the employee changes worksite locations.

Our Analysis of the In Matter of Simeio Solutions Decision

Very shortly after the AAO decision came out on April 9, 2015, our office provided a very thorough analysis of the AAO decision – including some historical background, pre-Simeio enforcement trends, together with detailed analysis of the decision.    We invite our readers to read our analysis for more details and background.    We also conducted a highly-attended webinar on the decision and a public archive is available.

Quick Overview of the May 27, 2015 Draft Policy Guidance

In an attempt to provide more clarity with respect to the best compliance approach and in reaction to the Simeio decision, on May 27, 2015, USCIS issued Draft Guidance on When to File an Amended H-1B Petition after the Simeio Solutions Decision which became effective as of the date of publication even while it was under public comment period.  One of the main goals of the draft guidance was to (1) provide clarification on when an H-1B amendment is required and when it is not required and to (2)  establish a 90-day grace period, until August 19, 2015, for H-1B employers to take the necessary steps to become compliance (file LCA and H-1B amendments).

We discussed and analyzed the May 27, 2015 Draft Guidance and you can read our analysis here.

The July 21, 2015 Final Policy Memorandum

In a Policy Memorandum, dated July 21, 2015, with subject “USCIS Final Guidance on When to File an Amended or New H-1B Petition After Matter of Simeio Solutions, LLC”, USCIS seeks to provide ultimate and final set of instructions as to when an H-1B amendment must be filed and what are the compliance steps for employers, especially for H-1B cases where the change of employment occurred at various times before and after the Simeio decision on April 9, 2015.

The Policy Memorandum essentially confirmed the Simeio decision that an H-1B amendment is required when there is  a change in the worksite location but also provides some explicit guidance as to when an H-1B amendment is not required.     This section of the final Policy Memorandum tracks the May 27, 2015 draft version.

The Policy Memorandum also goes into detail as to how USCIS would treat compliance by H-1B employers and sets different period during which H-1B change of worksite location will be treated differently in terms of compliance.   More on this in detail below.

First, When is an H-1B Amendment Required?

An H-1B employer must file an amended H-1B petition if the H-1B employee changed or is going to change his or her place of employment to a worksite location outside of the metropolitan statistical area (MSA) or an “area of intended employment” (as defined at 20 CFR 655.715) covered by the existing approved H-1B petition, even if a new LCA is already certified and posted at the new location.   In other words, doing an LCA only for the changed worksite location is not sufficient – an H-1B amendment filing prior to beginning work at the new worksite location is required.

Once the amended H-1B petition is filed, the H-1B employee is allowed to start working at the new worksite location.   The employer can (but does not have to) wait for the H-1B amendment decision before the H-1B employer can start work at the new worksite location.

Practical Tip.

From practical standpoint, the requirement to have the H-1B amendment filed before the new worksite location placement begins means that the H-1B amendment process should be initiated at least 2-3 weeks (for LCA certification, preparation, signing and filing of the H-1B petition) before the anticipated starting date for the new worksite location placement.     Often third-party client requirements require much faster starting date and this H-1B amendment preparation time should be considered carefully.      Another practical consideration is that an H-1B amendment for a third-party worksite placement requires documentation of the third-party client – letters, contracts, and similar documents – which are often difficult or slow to get.

When is an H-1B Amendment NOT Required?

Helpfully, the Policy Memorandum has clarified when an H-1B amendment is not required.

The New Worksite Location is Within the Same MSA.  If the new worksite location is within the same MSA or area of intended employment a new LCA is not required and, by extension, no H-1B amendment is required.    It is important to note that the H-1B employer must still post the original LCA in the new worksite location within the same MSA or area of intended employment.

Short-term Placements.   Under certain circumstances, an H-1B employer may place an H-1B worker at a new job location for up to 30 days and, in some cases for up to 60 days (where the employee is still based at the original location), without having to obtain a new LCA for the short-term placement location (20 CFR 655.735).  In these situations, the H-1B employer does not need to file an amended H-1B petition (assuming there are no other material changes to the terms of the H-1B petition).

Non-worksite Locations.  If the H-1B worker is only going to a non-worksite location and there are no other material changes to the H-1B petition, no H-1B amendment is required.   According to USCIS, a “non-worksite location” is:

  1. when the H-1B worker is going to a location to participate in employee developmental activity, such as management conferences and staff seminars;
  2. the H-1B worker spends little time at any one location; or
  3. the job is “peripatetic in nature,” such as situations where their primary job is at one location but the H-1B worker occasionally travels for short periods to other locations “on a casual, short-term basis, which can be recurring but not excessive  (i.e., not exceeding five consecutive workdays for any one visit by a peripatetic worker, or 10 consecutive workdays for any one visit by a worker who spends most work time at one location and travels occasionally to other locations).” 20 CFR 655.715.

Final Simeio Compliance Guide – Grace Period and Safe Harbor for Compliance

The guidance described above as to when an H-1B amendment is required when changing worksite is clear enough.   When it comes to how USCIS will handle Simeio compliance before and after the decision and the subsequent USCIS guidance, this is where it gets a little bit more complicated.    Below is our attempt to distill and simplify the guidance in a more user-friendly way.

If the H-1B Worksite Change Happened On or Before the April 9, 2015 Simeio Decision.   For H-1B petitions where the worksite change happened before April 9, 2015, USCIS has indicated that they will not pursue new adverse actions (e.g., a denial or a revocation).    Adverse actions initiated or completed before July 21, 2015 (the date of the Memo) will remain valid.   Essentially, USCIS will not reopen H-1B cases denied or revoked over the past three months due to non-compliance with Simeio and USCIS will not retract active attempts to deny or revoke an H-1B petition due to non-compliance with Simeio.   But for those H-1Bs where the worksite change happened before April 9, 2015 and are otherwise in compliance, USCIS is saying that they will not take new adverse action.

If the H-1B Worksite Change Happened After April 9, 2015 and Before August 19, 2015.   In this situation, USCIS provides a safe harbor compliance period until January 15, 2016 for employers to file an H-1B amendment and become compliant.   H-1B amendments filed before the January 15, 2016 safe harbor period deadline will be considered timely.   After the safe harbor period ends, any H-1B petitions where the worksite change happened after April 9, 2015 will be out of compliance and subject to adverse USCIS action (including for the H-1B worker to be considered to be in violation of H-1B status).

Practice Tip.

If, during the January 15, 2016 safe harbor period, an H-1B employer is facing a request for evidence or revocation proceeding on an existing H-1B petition where there was change in the worksite, filing a new H-1B amendment and providing USCIS with information about the newly-filed H-1B amendment petition should allow the petition to avoid revocation (assuming there are no other issues).

At the same time, if there is a change to the terms of a pending petition, including worksite change, USCIS will not entertain amendments to a pending petition.   Instead, a new H-1B amendment will have to be filed.

If the H-1B Worksite Change Happened After August 19, 2015.  This is when USCIS will expect all H-1B petitioners to file H-1B amendment or new petition before an H-1B worker starts working at the new worksite location.    No grace periods or safe harbor applies.

Practice Tip.

For H-1B workers who are considering changing worksites, it may be slightly more beneficial to do so before August 19, 2015.   The reason is that the worksite change before August 19, 2015 will be considered to be within the safe harbor and the H-1B employer will, based on this Policy Memo, have until January 15, 2016 to file the H-1B amendment (but it must be filed).

Post-Simeio Compliance Guide for H-1B Employers (and Workers)

Review Worksite Location and Change History.  We urge H-1B employers to carefully analyze the work locations of their H-1B workers and to confirm when such worksite locations changes have occurred (especially from early 2015 until the present time) in order to determine the next course of compliance action.      Employers should also keep in mind the January 15, 2016 safe harbor deadline.   Current cases facing adverse USCIS action (notice of intent to deny or revoke, RFEs, etc.)  may have a solution during the safe harbor period.

H-1B Amendment is Denied. If the H-1B amendment is denied but the underlying petition is still valid, the H-1B worker may be able to return to the worksite covered in the underlying H-1B petition and continue to be in valid H-1B status.    For many H-1B workers it may not be possible to return to a client where the project and the contract have ended, but this may help some folks.

H-1B Amendment Pending and Worksite Location Changes Again.    As noted above in this article, USCIS will not permit the terms (worksite location) of a pending H-1B petition to be revised while the petition is still pending.   But USCIS will allow another H-1B amendment petition to be filed when an earlier H-1B amendment petition remains pending if there is another change in the H-1B worker’s job location.      This is often referred to as “bridging” of applications.  There are risks in some cases – for example, if the H-1B status (I-94 card) has expired, a denial of an H-1B petition may cause all successive requests for H-1B status to be denied even if the H-1B petition is approved.    See Memorandum from Michael Aytes, Acting Director of Domestic Operations (December 27, 2005).

Travel Abroad While H-1B Amendment is Pending.    It may be possible to travel outside and reenter the US while an H-1B amendment is pending.    The rules are set forth in the June 19, 2001 AC21 Memorandum by Michael Cronin.  The Cronin memorandum sets up certain conditions which may allow entry into the US based on a pending H-1B petition under the provisions of AC21.   While this kind of entry is possible,  we caution that there are specific requirements and also validity of status limits so we urge H-1B workers to consider their situation and options carefully before assuming that they can enter the US.

Conclusion

We would like to iterate clearly that based on recent developments and on the final Policy Memorandum,  the requirement is that H-1B amendment petitions be filed when there is a change of job location all the time and before the placing the H-1B worker at the new jobsite.     Also, employers should evaluate their H-1B workers’ case files to determine whether there are cases which need to be brought into compliance before August 19, 2015.

We are also happy to work with our clients to make a comprehensive compliance plan for prompt and cost-effective LCA/H-1B compliance.    H-1B employers who routinely place workers at third-party worksites should consider making such LCA/H-1B compliance plans.   Contact us to allow us to evaluate your needs and provide suggestions for compliance planning.

We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  In the meantime, please do not hesitate to contact us with any questions or comments, or if we can be of any assistance with analyzing or filing H-1B petitions, including amendments.

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USCIS: H-1B Premium Processing Available Again Effective Immediately

USCIS has just announced that effective today, July 13, 2017, they are resuming accepting Form I-907 premium processing service requests for all H-1B petitions.     Previously, in mid-May, USCIS had announced that they are suspending the premium processing service for certain H-1B extension or transfer petitions until July 27, 2015 and we are glad to see that USCIS has been able to resume the premium processing service two weeks earlier than planned.

Background of the H-1B Premium Processing Suspension

The premium processing service for certain H-1B petitions (those requesting extension of stay – most notably, H-1B extensions and H-1B transfers) was suspended between May 26, 2015 and July 13, 2015 in order to accommodate the spike in the demand and number of H-4 Spouse EAD filings after the program opened on May 26th.

USCIS Statement on Resuming Premium Processing

This is USCIS’s statement from today,

We previously announced on May 19, 2015, that premium processing service would be suspended for Form I-129 H-1B extension of stay petitions from May 26, 2015 to July 27, 2015. The temporary suspension allowed us to implement the Employment Authorization for Certain H-4 Dependent Spouses final rule in a timely manner and begin adjudication of applications for employment authorization filed by H-4 nonimmigrants under the new regulation. Premium processing remained available for all other types of Form I-129 H-1B petitions during the temporary suspension.

We have closely monitored our workloads and have determined that we can resume premium processing service for H-1B extension of stay petitions on July 13, 2015.

Conclusion

We are delighted to see that the premium processing service has been reinstated.     While we applaud USCIS’s intent on making sufficient resources available to the H-4 Spouse EAD program, we have seen a number of cases where the suspension of the premium processing service had created (sometimes severely negative) consequences to both H-1B employers and employees.       We now anticipate a (hopefully, short) wave of H-1B upgrade filings.

Please do not hesitate to contact us if we can be of any help in connection with this unanticipated H-1B premium processing disruption and of service.    We are also assisting many H-4 Spouse EAD applicants and we are happy to offer information and a quote of our H-4 Spouse EAD filing services.   Please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics.

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H-1B Amendment Required When Changing Jobsites – August 19, 2015 Deadline for Compliance

The Simeio H-1B guidance has been updated.     Please see the Final Policy Memorandum on Simeio.


The April 9, 2015 AAO decision In Matter of Simeio Solutions, LLC (PDF copy) put many H-1B employers (mainly those who place H-1B workers at third-party worksites) in a position to scramble and assess their current level of compliance with the H-1B regulations, as they would be interpreted by USCIS in accordance with the Simeio Solutions decision.      In an attempt to provide more clarity with their compliance approach, on May 27, 2015, USCIS issued Draft Guidance on When to File an Amended H-1B Petition after the Simeio Solutions Decision which is effective as of the date of publication but while under public comment period.  One of the main goals of the draft guidance is to (1) provide clarification on when an H-1B amendment is required and when it is not required and to (2)  establish a 90-day grace period, until August 19, 2015, for H-1B employers to take the necessary steps to become compliance (file LCA and H-1B amendments).

Our Analysis of the In Matter of Simeio Solutions Decision

Very shortly after the AAO decision came out our office provided a very thorough analysis of the AAO decision – including some historical background, pre-Simeio enforcement trends, together with detailed analysis of the decision.    We invite our readers to read our analysis for more details and background.    We also conducted a highly-attended webinar on the decision and a public archive is available.

USCIS Compliance Guide – When is an H-1B Amendment Required?

An H-1B employer must file an amended H-1B petition if the H-1B employee changed or is going to change his or her place of employment to a worksite location outside of the metropolitan statistical area (MSA) or an “area of intended employment” (as defined at 20 CFR 655.715) covered by the existing approved H-1B petition, even if a new LCA is already certified and posted at the new location.   In other words, doing an LCA only for the changed worksite location is not sufficient – an H-1B amendment filing prior to beginning work at the new worksite location is required.

Once the amended H-1B petition is filed, the H-1B employee is allowed to start working at the new worksite location.   The employer can (but does not have to) wait for the H-1B amendment decision before the H-1B employer can start work at the new worksite location.

Practical Considerations.   From practical standpoint, the requirement to have the H-1B amendment filed before the new worksite location placement begins means that the H-1B amendment process should be initiated at least 2-3 weeks (for LCA certification, preparation, signing and filing of the H-1B petition) before the anticipated starting date for the new worksite location placement.     Often third-party client requirements require much faster starting date and this H-1B amendment preparation time should be considered carefully.      Another practical consideration is that an H-1B amendment for a third-party worksite placement requires documentation of the third-party client – letters, contracts, and similar documents – which are often difficult or slow to get.

USCIS Compliance Guide – When is an H-1B Amendment NOT Required?

Helpfully, USCIS has clarified when is an H-1B amendment not required.

The New Worksite Location is Within the Same MSA.  If the new worksite location is within the same MSA or area of intended employment a new LCA is not required and, by extension, no H-1B amendment is required.    It is important to note that the H-1B employer must still post the original LCA in the new worksite location within the same MSA or area of intended employment.

Short-term Placements.   Under certain circumstances, an H-1B employer may place an H-1B worker at a new job location for up to 30 days and, in some cases for up to 60 days (where the employee is still based at the original location), without having to obtain a new LCA for the short-term placement location (20 CFR 655.735).  In these situations, the H-1B employer does not need to file an amended H-1B petition.

Non-worksite Locations.  If the H-1B worker is only going to a non-worksite location, no H-1B amendment is required.   According to USCIS, a “non-worksite location” is:

  1. when the H-1B worker is going to a location to participate in employee developmental activity, such as management conferences and staff seminars;
  2. the H-1B worker spends little time at any one location; or
  3. the job is “peripatetic in nature,” such as situations where their primary job is at one location but the H-1B worker occasionally travels for short periods to other locations “on a casual, short-term basis, which can be recurring but not excessive  (i.e., not exceeding five consecutive workdays for any one visit by a peripatetic worker, or 10 consecutive workdays for any one visit by a worker who spends most work time at one location and travels occasionally to other locations).” 20 CFR 655.715.

USCIS Compliance Guide – Grace Period to H-1B Employers to File H-1B Amendments by August 19, 2015

Having provided guidance on when an H-1B amendment filing is required and when it is not required, USCIS confirms that non-compliance with the guidance after the August 19, 2015 grace period ends (i.e. not filing an H-1B amendment when it is required) will cause USCIS to take adverse action against employers and that “H-1B employees would not be maintaining their nonimmigrant status.”

Worksite Changes Before May 21, 2015.   USCIS has advised that for worksite location changes which occurred at the time of the Simeio Solutions decision, employers will be granted a grace period of 90 days, or until August 19, 2015, to file an H-1B amendment petition.     For worksite location changes which occurred before the Simeio Solutions decision (April 9, 2015), USCIS will not take adverse action against the employer or its employees if the employer, in good faith, relied on prior guidance suggesting that an LCA only (and not H-1B petition amendment filing) is sufficient for worksite changes; however,  the H-1B employer must still become compliant by filing an H-1B amendment by August 19, 2015.

Worksite Changes After May 21, 2015.  The grace period does not seem to apply and USCIS will expect that an H-1B amendment be filed prior to the H-1B worker starting at the new worksite location.

Pending H-1B Amendments.   If there is a pending H-1B amendment, USCIS will permit another H-1B amendment to be filed, while an earlier H-1B amendment is pending, allowing the H-1B worker to begin work at the new worksite location upon filing.   However, USCIS is cautioning that in this “bridging” situation, any gaps in status or a denial of a “bridge” petition may result in a denial of the status component of any subsequent H-1B petitions.

H-1B Amendment Denial Does not Automatically Invalidate the Previous H-1B Petition.   USCIS has confirmed a denial of an H-1B amendment petition would not automatically invalidate the prior worksite location’s H-1B petition and if the H-1B worker returns to the prior worksite location, the H-1B worker may be able to continue to maintain valid H-1B status.     In many cases, the sole reason an H-1B worker moves from one location to another is project completion so it is often not possible to return to the prior H-1B worksite location; but when this is possible, this portion of the guidance allows for a backup plan to remain in H-1B status.

Compliance Steps for H-1B Employers

Needless to say, the AAO decision, the USCIS guidance, and the publicity it has received is causing a lot of discussion and anxiety, especially among H-1B employers who place their workers at third-party worksites.     Here are some points for better compliance and less H-1B issues (such as H-1B site visits, visa stamp denials and revocations).

Anticipate and Evaluate Possible New Worksite Locations.    First, any time there is the possibility of a worksite location change during the term of an H-1B petition, the employer (and perhaps the worker) should have a process to anticipate the timing of such worksite location change, including analyzing the actual worksite change location.

H-1B Amendment Not Required if New Worksite Within Same MSA or Within “Normal Commuting Distance”. The AAO decision and the USCIS guidance confirm that if there is a change to a worksite location within the same MSA or within a normal commuting distance, then the LCA remains valid and no H-1B amendment is required (but LCA posting is required).   “Normal commuting distance” can vary depending on the area – but 20, 30 or 50 miles may be considered to be “normal commuting distance.”

File H-1B Amendment “Immediately”.    The regulations require that the H-1B employer “shall immediately notify” USCIS when there is a change in the terms of the petition – essentially, an H-1B amendment must be filed before the new worksite location placement takes place.    Since a new LCA takes up to seven business days, the LCA and the H-1B amendment filing process should be anticipated and started at least 2-3 weeks before the new worksite location placement begins.      Even if this is not possible, the LCA/H-1B amendment should be done as soon as possible.

Late Compliance (H-1B amendment) is Better than No Compliance.   We would like to encourage H-1B employers who have not done the necessary H-1B compliance and who have relied on LCAs only for worksite changes to consider preparing and filing H-1B amendments as soon as possible and before the August 19, 2015 grace period expiration.

What Kind of H-1B Cases Are in Jeopardy? We do not know how much additional scrutiny USCIS would impose on existing petitions for worksite compliance, but mismatch between an actual worksite and H-1B petition is likely to cause H-1B visa stamp delays/denials and, ultimately, consular returns.   Similarly, H-1B site visits are likely to cause problems which would lead ultimately to a Notice of Intent to Revoke and a likely H-1B revocation.     H-1B extensions may also face higher scrutiny to establish current compliance and status as part of the H-1B extension adjudication process.

Conclusion

We would like to iterate clearly that based on recent developments and trends we see,  we are recommending that H-1B amendment petitions be filed when there is a change of job location all the time and before the placing the H-1B worker at the new jobsite.     Also, employers should evaluate their H-1B workers’ case files to determine whether there are cases which need to be brought into compliance before the August 19, 2015 grace period expires.

We are also happy to work with our clients to make a comprehensive compliance plan for prompt and cost-effective LCA/H-1B compliance.    H-1B employers who routinely place workers at third-party worksites should consider making such LCA/H-1B compliance plans.   Contact us to allow us to evaluate your needs and provide suggestions for compliance planning.

We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  In the meantime, please do not hesitate to contact us with any questions or comments, or if we can be of any assistance with analyzing or filing H-1B petitions, including amendments.

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USCIS Temporarily Suspends Premium Processing of H-1B Extension of Stay Petitions

USCIS has announced that effective May 26, 2015, they are temporarily suspending the premium processing for all H-1B extension of stay petitions for two months, or until July 27, 2015.     This surprising announcement comes in light of the anticipated heavy demand and number of filings for H-4 Spouse EAD when the filing window for this new work permit begins on May 26, 2015.

Premium Processing Not Available for New Filings of H-1B Extensions

During this time frame, petitioners will not be able to file Form I-907, Request for Premium Processing Service, for a Form I-129, Petition for a Nonimmigrant Worker, requesting an extension of the stay for an H-1B nonimmigrant.  USCIS will continue to premium process H-1B Extension of Stay petitions filed with Form I-907 premium requests prior to May 26, 2015.   Although USCIS has not specifically confirmed this in their announcement, USCIS is expected to continue to allow premium processing of H-1B petitions requesting initial terms of stay or consular processing.

Reasons for Temporarily Suspending H-1B Premium Processing

The rationale behind this two-month temporary suspension of the premium processing option for H-1B extension of stay petitions is the anticipated heavy demand and high number of H-4 Spouse EAD filings on and shortly after May 26th.    This is the earliest date when applications under the new H-4 Spouse EAD program can be filed and it is expected that there will be tens of thousands applications filed over the first weeks or months of eligibility.

Only H-1B Extension of Stay Applications Are Affected

We should highlight one more time that the temporary suspension of premium processing applies only to H-1B extension of stay petitions.    These types of petitions are expected to include H-1B extensions with the same employer or H-1B transfer petitions where an extension of stay is also being sought.

Petitions Not Affected.  H-1B petitions requesting change of status, H-1B amendments without extension of stay, petitions for L-1 (and other visa types eligible for premium processing) should remain unaffected with premium processing service available.

Premium Processing Fee Refunds Will be Offered to Affected Cases

For H-1B premium processing cases filed prior to May 26, 2015, USCIS will refund the premium processing fee if USCIS is unable to act on the case within 15 calendar days of filing.     We expect that USCIS will reject the premium processing component of H-1B affected H-1B petitions during this period (assuming the premium processing fee is in the form of a separate filing fee check).

What Else May Be Affected?

Given this unexpected announcement and in the fact of really high number of H-4 Spouse EAD filings on or after May 26th, it is likely that the USCIS processing timelines across the board may increase, at least at USCIS Service Centers which are dealing with H-4 Spouse EAD applications.   For example, we expect receipt notices to take longer to be issued and mailed out and we expect processing times to generally increase.      We urge proper planning and early filing to avoid problems caused by any processing delays.   Contact us if we can assist in any way.

Conclusion

This extraordinary (and unexpected, at least to us) announcement suggests that USCIS is bracing for a very high rate of H-4 Spouse EAD filings next week after May 26th.    This also suggests that there may be wider delays and possible disruption of processing times/services by USCIS which may go beyond H-1B extension filings.   We urge H-1B employers who have filed or are planning to file H-1B petitions, including extensions or change of status applications, to plan carefully and consider the possibility that H-1B petition adjudication times would increase.

Similarly, H-1B workers who are seeking an extension in order to prepare for an H-4 Spouse EAD filing or perhaps to travel abroad for stamping are now likely to see increased processing times and non-availability of the premium processing service.

Please do not hesitate to contact us if we can be of any help in preparing for this unanticipated H-1B premium processing disruption of service.    We are also assisting many H-4 Spouse EAD applicants and we are happy to offer information and a quote of our H-4 Spouse EAD filing services.   Please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics.

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USCIS Completes Data Entry and Receipting of H-1B Cap Petitions

Many of our readers are aware that as of April 7, 2015, USCIS had received a sufficient number of H-1B cap-subject petitions to fill the annual H-1B quota.    As USCIS has been issuing receipt notices for the H-1B cap cases which are being selected for processing (we even are starting to see H-1B cap premium processing approvals), we wanted to provide an update as to how long will H-1B petitioners and applicants wait to hear whether their H-1B petition has been selected for processing under the H-1B cap.

H-1B Completes H-1B Petition Data Entry on May 4, 2015

USCIS has just announced that they have completed the data entry and receipting of all selected H-1B cap petitions.  This means that the last set of receipt notices are about to be sent out.   Here’s USCIS’s announcement:

USCIS announced May 4, 2015, that it has completed data entry of all fiscal year 2016 H-1B cap-subject petitions selected in our computer-generated random process. USCIS will now begin returning all H-1B cap-subject petitions that were not selected. Due to the high volume of filings, the time frame for returning these petitions is uncertain. USCIS asks petitioners to not inquire about the status of submitted cap-subject petitions until they receive a receipt notice or an unselected petition is returned. USCIS will issue an announcement once all the petitions have been returned.

Based on this announcement, we expect that it may take another week or so to expect to receive H-1B cap receipt notices for selected cases.   Afterwards, USCIS will turn its attention to sending out the H-1B non-selection notices and document packages back.

Receipt of Rejection Packages Can Take Weeks

Please note that given the number of rejections USCIS will have to send out (~150 thousand), we expect that it may take at least several weeks before all H-1B lottery rejection packages are sent back and before knowing with certainty that a case did not make it under the H-1B cap lottery.

Was My Case Selected for Processing Under the H-1B Lottery This Year?

  • If your case was filed under premium processing and a receipt notice was not issued by now, chances are that the H-1B cap case was not selected under the lottery.
  • If your case was filed under regular processing, we should know that your case was selected under the H-1B cap lottery by mid-May.
  • If your case was filed under regular processing and we do not have news by mid-May, it is likely that your case was not selected under the H-1B cap lottery; however, the actual rejection notice may take several weeks.

Conclusion

Our office will continue to monitor developments relating to the H-1B cap  season.    For those who did not make it under the H-1B cap lottery, we have provided an article describing some common H-1B cap alternative options.     In the meantime, please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics. If our office can be of any help with any of the H-1B visa alternative options, please feel free to contact us.

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This Year’s H-1B Cap Has Been Reached – What Are the Alternative Visa Options?

Many of our readers are aware that as of April 7, 2015, USCIS had received a sufficient number of H-1B cap-subject petitions to fill the annual H-1B quota.  This year’s number of filings (233,000) is at an all-time high, meaning that about 1 in 3 H-1B cap applications will be selected for review.    As USCIS is starting to issue receipt notices for the H-1B cap cases which are being selected for processing (we even are starting to see H-1B cap premium processing approvals), we wanted to provide an overview of the alternative visa options for those H-1B employers and employees whose H-1Bs did not get selected under the H-1B cap lottery.

The H-1B Cap Season Numbers

This year there were 233,000 applications filed for the 85,000 available H-1B cap visas, resulting in a simple calculation of about 36% average chance than an application will be selected for processing under the H-1B cap.    U.S. master’s degree holders have higher change, while the rest of the applicants have slightly lower chance due to the way U.S. master’s degree holders’ H-1B cap cases are given priority at the lottery.   This 36% chance is significantly lower than last H-1B cap year’s 50% average chance of H-1B cap selection.     As a comparison, there were 172,500 H-1B applications filed last year (which translates to 35% more H-1B cap applications filed this year compared to last year’s H-1B cap season).

As a result,  many employers and prospective employees who wanted to take advantage of the H-1B program this year are unable to do so — either because they were unable to file between April 1st and 7th or because their application was not picked by the H-1B lottery.     We seek to describe some alternative visa options.

Alternatives to H-1B Cap Petitions

Now that the H-1B quota has been reached, we are receiving an increasing number of inquiries by both cap-subject employers and prospective employees about the alternatives for work authorization between now and October 1, 2015, when the new fiscal year’s H-1B quota would begin (as a reminder, April 1, 2016 is the earliest a cap-subject H-1B application can be filed under next year’s cap).  We describe some of the most common H-1B visa alternatives.  Note that the list is not intended to exhaust all possible visa types and scenarios pursuant to which an employee may be legally employed.  Our goal is to list some of the common options for the benefit of our clients and readers.  We are happy to discuss individual cases as part of our initial consultation.

Cap-Exempt H-1B

A number of employers may qualify to be cap-exempt and are allowed to file for H-1B petition at any time.   A cap-exempt employer is (1) an institution of higher education, (2) related or affiliated to a higher education institution nonprofit entity, or  (3) nonprofit research organization or a governmental research organization.  A cap-exemption case may be made even if the actual H-1B employer does not meet these requirements but the placement of the H-1B worker will be at the location of a cap-exempt employer.    Please see our cap-exempt H-1B employer guide.   As a result, many educational institutions, non-profit and research organizations may qualify to file cap-exempt H-1Bs.   We are happy to help evaluate whether an employer can qualify to be cap-exempt.

O-1 or P-1 Extraordinary Ability Visas

O-1 and P-1 visas are generally reserved for individuals who have extraordinary ability in the sciences, arts (including the television and motion picture industry), education, business, or athletics.  By definition, not many individuals qualify for one or both of these visa types, but where possible, an application for O-1 and/or P-1 should be prepared in lieu of H-1B.   In addition to being able to obtain work authorization pursuant to these visa types, an O-1 and/or P-1 approval may establish the basis for the subsequent application for an EB-1 category permanent residency.  Please contact us if you would like our help in evaluating your O-1 and/or P-1 visa case.

L-1 Intracompany Transferee

The L-1 visa type allows multinational companies who have presence abroad to transfer their employees from their overseas offices to their U.S. office (or to establish a new U.S. office).  This visa type is a good option for foreign employers seeking to establish or boost their U.S. presence and for foreign nationals currently employed abroad.   Foreign nationals who are currently in the U.S. generally will not qualify for L-1 visa.  An added benefit to the L-1 visa is that family members are entitled to a work authorization pursuant to L-2 status.

TN for Canadian and Mexican Professional Workers

An option available to certain Canadian and Mexican nationals in certain occupations is the TN visa classification.   It is available to citizens of Canada and Mexico who would be employed in the U.S. in one of the designated occupations.  The TN visa is not subject to a cap and can be obtained fairly easily either by applying at the border (for Canadians) or by filing a petition with USCIS.    Please see more information on the TN visa classification.

E-1/E-2 Treaty Trader or Investor

The E-1/E-2 visas allow nationals of countries with which the U.S. has trade treaties to invest an amount in the U.S. and receive an E-1 (treaty trader) or E-2 (treaty investor) visa.  See a list of treaty countries.

The E-1 treaty trader visa is suitable if the foreign national has a multinational employer who is willing to transfer them, and the company has significant trade between the foreign country and the U.S.  The employee must also have skills which are essential to the operation of the company trade.   Dependents of E-1 visa holder are eligible for work in the U.S.

The E-2 treaty investor allows foreign nationals to invest (preferably) a substantial amount in the U.S. and obtain an E-2 visa to be able to manage and direct their investment.  The amount required for investment generally varies depending on the industry (the so called, proportionality test) with more capital-intensive industries requiring more significant investment for E-2 application.   Dependents of E-2 visa holders are eligible to apply for work authorization.

F-1 Optional Practical Training (OPT) Extension or F-1 Curricular Practical Training  (CPT)

Many of the H-1B cap candidates are F-1 student visa holders who are already in the U.S. and for them there may be ways to continue to stay on F-1 status while having work authorization.    OPT holders who have completed a STEM degree (See Which Degrees are on the STEM List?) are eligible to apply for a 17-month STEM OPT extension.    There are certain requirements to qualify for the 17-month STEM OPT extension (employer must be E-Verified company, extension must be filed before the current OPT expires, and others) but this is a great way for F-1 students to continue to be able to work in the U.S.

Additionally, certain schools and F-1 degree programs allow an F-1 student to engage in employment related to their field of study under the Curricular Practical Training, CPT, program.    Availability and eligibility varies by school and program; but when available, the F-1 CPT option may allow continued employment authorization.

File for a Permanent Residency/Green Card Directly

For some employers and their foreign workers filing for an employment-based green card may be  viable option.   Normally, employers seek to hire a foreign worker on H-1B status and then the employer does a green card sponsorship.    However, it is also possible to do a green card directly, without going through the H-1B visa option.      This option may work best for foreign workers who have a master’s degree OR a bachelor’s degree and five years of experience and are nationals of a country other than China or India.   This option may work well even for holders of a bachelor’s degree from a country other than China or India.     Unfortunately, this direct green card filing option may not work so well for India or China nationals because of the significant waiting time for a visa number to become available (4-5+ years).

For example, it may be possible to secure a PERM Labor Certification approval in 9-12 months.   For many EB-2 (and even for some EB-3) candidates, the way the Visa Bulletin cutoff dates have advanced means that the second and third stages of the green card process (which also grants permission to stay in the U.S. and EAD permission to work) can be filed within a year (or possibly even less) after starting the green card process.    While the foreign national will need to be able to maintain valid status in the U.S. during this time, the direct filing of a green card may be a good alternative to simply skip the H-1B work visa filing process.     Obviously, the suitability of this option depends on a number of factors, including education, experience, country of nationality and the ability to maintain status in the U.S.     We are happy to provide a more personalized overview of this option – please contact one of our attorneys for more information.

H-1B Program Changes by Congress Possible, Although Timing is Uncertain

It has become a pattern that after every H-1B cap season ends, resulting in a high number of disappointed employers and employees who did not make it under the lottery, there is increased talk about raising the H-1B cap limit.     There are proposals and much talk here in Washington, DC about this kind of a chance in the H-1B program; however, as of this time, there is no proposal or law which would become law any time soon.    As we have done in the past, our office would continue to monitor and report on any developments relating to relief to H-1B employers and workers, so stay tuned.

Wait and File on April 1, 2016 for the FY2017 Cap

For some of our clients, waiting until April 1, 2016 to file a new cap-subject H-1B petition may be the best (or only?) option.  The H-1B visa type, although subject to some requirements, is a fairly common visa type for which many qualified employees are eligible.    As of now, and assuming any proposed immigration reform is not enacted by then, the FY2017 H-1B cap is expected to be the same as it was for the FY2016 fiscal year – 65,000 H-1B visas (plus 20,000 for holders of U.S. master’s degrees).

Conclusion

Our office will continue to monitor developments relating to the H-1B program, this and next year’s caps and the immigration proposals.   In the meantime, please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics. If our office can be of any help with any of the H-1B visa alternative options, please feel free to contact us.

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H-4 Spouse EAD – Four Major Outstanding Questions for USCIS

As our office is gearing up for May 26, 2015 when the first H-4 Spouse EAD applications under the new rule can be filed, we are still looking forward to clarifications and updates from USCIS on a number of important topics.      Here are four major issues which affect a number of H-4 EAD applicants and which issues are still outstanding as of today, about a month before the H-4 Spouse EAD applications can be filed.

When Would the Final Form I-765 (and Accompanying Instructions) be Released?

While USCIS has published the approved draft revision of Form I-765, they have not released the form for general circulation on the relevant Form I-765 website.    As our office is gearing up for a high number of H-4 Spouse EAD applications, we would like to see the revised form released for public use as soon as possible to avoid timely (and calm) H-4 Spouse EAD preparation process.     It is unclear at this time whether USCIS will accept the current version of Form I-765 for H-4 Spouse EAD filings on or after May 26th.

Would Concurrently-Filed H-4 Change of Status and H-4 Spouse EAD Applications be Approved At the Same Time?

A key question for those seeking to change status to H-4 and concurrently be able to obtain work permit is whether USCIS will be able to approve the H-4 change of status (COS) application together with the H-4 Spouse EAD application.     USCIS has indicated that they would accept concurrently filed H-4 COS and H-4 EAD applications; however, there is no much clarity on the mechanics of approval.

This situation poses a problem for applicants who are currently in status authorizing employment and are, in fact, employed.    Ideally, we hope that the H-4 COS and the H-4 EAD applications will be approved at the same time, which would ensure continued work authorization to the applicant and would eliminate disruption to the applicant’s continued employment (which can be costly to the applicant in terms of career reputation and income).

For example, an H-1B worker who is gainfully employed and seeks to transition to H-4 EAD would have to file the H-4 COS and H-4 EAD applications.    However, if the H-4 COS application is approved first while the H-4 EAD remains pending, the person will find themselves in H-4 status but without a work authorization document and they will need to stop working immediately after H-4 COS approval and refrain from working until the H-4 EAD is approved.     We are hoping that USCIS would provide guidance that H-4 COS and H-4 EAD applications which are filed concurrently will be approved at the same time; alternatively, some guidance which would ensure that H-4 EADs approved after the H-4 COS is approved would be backdated with an effective date of the H-4 change of status approval date.

Guidance on this point is critically needed because many H-4 EAD applicants may be exposed to either having to stop working or perhaps engage in a period of unauthorized employment.   We will provide updates as soon as we have any.

Would the H-4 Spouse EAD Be Allowed When the Primary H-1B Spouse Is Extending Beyond the Sixth-Year Maximum But When Part of the New H-1B Term Includes Periods of the Initial Six-Year Term?

This question applies to situations where the H-1B spouse is getting close to the sixth-year H-1B term and when the H-1B employer has filed for extension of (or extended) the H-1B term which extension includes part of the initial six-year H-1B term and H-1B time beyond the sixth-year limit based on PERM or I-140 pending for more than 365 days under AC21.    There is no question that this is permitted for H-1B extensions.

The question is whether the H-4 Spouse EAD rule will allow H-4 spouse to obtain the EAD when the H-1B spouse has a term which includes a combination of H-1B time under the initial six-year H-1B limit and additional time beyond the six-year H-1B limit under AC21.   USCIS has indicated that guidance on this point is forthcoming as part of a FAQ document.  Please stay tuned for updates.

Would International Travel When an H-4 EAD Application Remains Pending Be Permitted Without Having to Refile Another H-4 EAD Application After Return to the U.S.?

Since May 26th coincides generally with the beginning of the summer travel season, many H-4 Spouse EAD applicants have already made travel plans for the May-September period.    We know that the actual H-4 Spouse EAD application will have to include evidence of an applicant’s H-4 status in the U.S. which essentially requires the H-4 EAD applicant to be in the U.S. physically and be able to provide valid I-94 card as evidence.

The question is whether an H-4 Spouse EAD applicant can leave the U.S. after having filed the H-4 EAD application and whether such departure would affect the outcome of the H-4 EAD application and/or the validity of the H-4 EAD document, once approved.    We do not have guidance from USCIS on this point and they have indicated that they will be providing guidance.

We are hopeful that such guidance would match guidance issued in other similar EAD situations – L-2 EAD, E-2 EAD, OPT EAD – where travel during the time an EAD application remains pending does not normally affect the outcome or validity of the actual EAD application.

Conclusion

As we are getting closer to the May 26th H-4 Spouse EAD “opening day” we are hoping for smooth and clear H-4 EAD filing process, especially within the first days and weeks after May 26th.    The new rule still has a number of outstanding issues which require clarifications and we are hoping USICS will be able to provide updates over the next several days.

We will continue to provide information on this rule and answers to these questions as soon as we have anything to share.  Please do not hesitate to contact us if we can review your case, answer any questions or schedule a consultation.   We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.    We can also provide a quote for the attorney service for filing the H-4 Spouse EAD.

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H-1B Amendment Required When Changing Jobsites – Regulatory Updates and New Compliance Guidelines

A recent Administrative Appeals Office (AAO) decision which highlighted the requirement for an H-1B amendment any time there is a change in the job site requiring a new Labor Condition Application (LCA) has created a lot of conversation in some H-1B circles and our office has been handling many inquiries, concerns and reactions to the requirements imposed by the AAO decision.        This article and the resources our office will be providing over the next weeks are aimed at clarifying the H-1B amendment requirements and providing guidance to H-1B employers (and their H-1B workers) for proper compliance.

The Recent AAO Decision – Matter of Simeio Solutions, LLC

In Matter of Simeio Solutions, LLC (PDF copy), in an April 9, 2015 decision, the AAO discussed the requirements for an H-1B amendment when there is a change in the terms of an H-1B petition  and, specifically, change in the work location noted in the underlying H-1B petition.

In this specific case, USCIS was not able to find the beneficiary at the location named on the initial LCA and on the H-1B petition (which was in the Los Angeles, CA area) and sought to revoke the H-1B petition.   In response, the petitioner indicated that the beneficiary would work at additional work sites, not named in the initial H-1B petition, and provided certified LCAs  for the new worksites – one of which was in Camarillo, CA and the other for Hoboken, NJ.   The petitioner had made the argument that the new LCA work locations are sufficient to show compliance with the H-1B regulations and that the H-1B petition should not be revoked. The California Service Center did not accept these arguments and revoked the H-1B petition.   The petitioner then appealed to the AAO.

In its decision, the AAO reviews the relevant H-1B/LCA regulations and concludes that a change in the place of employment of a beneficiary to a geographical area requiring a corresponding LCA be certified would materially change to the terms of the approved H-1B petition and this requires an amendment.   The AAO relies on the following section of the regulations:

8 CFR 214.2(h)(2)(i)(E) states (emphasis added):

The petitioner shall file an amended or new petition, with fee, with the Service Center where the original petition was filed to reflect any material changes in the terms and conditions of employment or training or the alien’s eligibility as specified in the original approved petition. An amended or new H-1C, H-1B, H-2A, or H-2B petition must be accompanied by a current or new Department of Labor determination. In the case of an H-1B petition, this requirement includes a new labor condition application.

Also, petitioners are required to notify USCIS immediately if the terms and conditions of the H-1B petition “may affect eligibility”.   8 CFR 214.2(h)(11)(i)(A) (emphasis added) states:

The petitioner shall immediately notify the Service of any changes in the terms and conditions of employment of a beneficiary which may affect eligibility under section 101(a)(15)(H) of the Act and paragraph (h) of this section. An amended petition on Form I-129 should be filed when the petitioner continues to employ the beneficiary.

Taking these two sections of the relevant regulations, and analyzing the prevailing wage requirements for the various worksite locations, the AAO concluded that change in the worksite location may affect the eligibility under the H-1B program and, as a result, requires an amendment to be filed “immediately.”    An important note is that the AAO decision implicitly confirms that if there is a worksite location change to a new area covered by the same LCA (which is often the same Metropolitan Statistical Area, or MSA), then the requirement for an H-1B amendment would not apply.

It is important to note that the underlying case was governed by the California Service Center but this AAO decision would apply to the Vermont Service Center as well because the regulations giving rise to the decision apply to both H-1B processing service centers.

The H-1B Amendment Requirement Has Been Part of a Trend for Some Time Already

It is important to point out that this AAO decision is not a sudden change of direction.  Our office has been following closely H-1B adjudication and post-approval (site visits, consular returns, NOIR) trends coming out from both the Vermont and California Service Centers and advising clients to file H-1B amendments any time there is a change in the H-1B worksite requiring a new LCA for many months, even for well over a year.

For example, in October 2014 we wrote an extensive article (“Change in H-1B Work Location – To Amend or Not to Amend?“, October 2, 2014) about the trend in the H-1B amendment requirements coming from both Vermont and  California.    In this article we reported discussed the history of the H-1B program and the prior (and overruled by recent AAO action) guidance that an H-1B amendment is not required when the only change in the terms of the petition is a worksite location.    We wrote how this prior guidance was based on

[A]n October 23, 2003 Letter from Efren Hernandez III, Dir., Bus. and Trade Branch of USCIS, Mr. Hernandez specifically expresses guidance that H-1B amendment is not required where the H-1B worker is placed at a new location as long as there is an LCA for this new jobsite.    Over the past years, however, this guidance has been slowly and gradually superseded by a more strict interpretation of the H-1B  regulations.

In our 2014 analysis of the H-1B amendment requirement problem we also explained how in

a non-precedent AAO decision dated as of July 23, 2014, USCIS explicitly overruled the 2003 Hernandez letter and took the position that the Vermont Service Center properly revoked an H-1B petition where there was a jobsite change and LCA without an H-1B amendment filing.

The bottom line is that the Matter of Simeio Solutions, LLC decision is not a sudden change in policy or direction.   Our office had been reporting on this for a long time now and we hope that our clients and readers would find themselves with at least a bit of advance knowledge at this point and not be surprised by this new AAO decision as many appear to be.

Change in Worksite Location and H-1B Amendment – Compliance Steps for H-1B Employers

Needless to say, the recent AAO decision and the publicity it has received is causing a lot of discussion and anxiety, especially among H-1B employers who place their workers at third-party worksites.     As discussed above, our office was aware of the changing trends and we have already been providing this kind of guidance and advise for many months.    Here are some points for better compliance and less H-1B issues (such as H-1B site visits, visa stamp denials and revocations).

Anticipate and Evaluate Possible New Worksite Locations.    First, any time there is the possibility of a worksite location change during the term of an H-1B petition, the employer (and perhaps the worker) should have a process to anticipate the timing of such worksite location change, including analyzing the actual worksite change location.

H-1B Amendment Likely Not Required if New Worksite Within Same MSA or Within “Normal Commuting Distance”. The AAO decision states that “a change in the place employment of a beneficiary to a geographical area requiring a corresponding LCA be cerfified” required an H-1B amendment.  However, by implication, if there is a change in the worksite to a location within the same MSA or within a normal commuting distance, then the LCA remains valid and no H-1B amendment is required.   “Normal commuting distance” can vary depending on the area – but 20, 30 or 50 miles may be considered to be “normal commuting distance.”

File H-1B Amendment “Immediately”.    The regulations require that the H-1B employer “shall immediately notify” USCIS when there is a change in the terms of the petition – essentially, an H-1B amendment must be filed before (ideally) the new worksite location placement takes place.    Since a new LCA takes up to seven business days, the LCA and the H-1B amendment filing process should be anticipated and started at least 2-3 weeks before the new worksite location placement begins.      Even if this is not possible, the LCA/H-1B amendment should be done as soon as possible.

Late Compliance (H-1B amendment) is Better than No Compliance.   We would like to encourage H-1B employers who have not done the necessary H-1B compliance and who have relied on LCAs only for worksite changes to consider preparing and filing H-1B amendments as soon as possible.

What Kind of H-1B Cases Are in Jeopardy?   We do not know how much additional scrutiny USCIS would impose on existing petitions for worksite compliance, but mismatch between an actual worksite and H-1B petition is likely to cause H-1B visa stamp delays/denials and, ultimately, consular returns.   Similarly, H-1B site visits are likely to cause problems which would lead ultimately to a Notice of Intent to Revoke and a likely H-1B revocation.     Similarly, H-1B extensions may also face higher scrutiny to establish current compliance and status as part of the H-1B extension adjudication process.

H-1B Worksite Change/Amendments Discussion and Step-by-step Guidance – FREE Webinar

We feel that our position as having closely followed the H-1B worksite change/H-1B amendment situation over the last year or so and our advising many H-1B third-party worksite employers allows us to provide some useful guidance and compliance steps.     To accommodate the great recent demand of clarification and guidance on this issue and create a public forum for discussion, our attorneys will be conducting a free webinar focused solely on the H-1B Worksite Change/Amendments topic.

Please join us for a FREE webinar and Q&A session on the H-1B Worksite Change/Amendments topic on Monday, May 4, 2015 at 1 p.m. eastern U.S. time.    Registration is free but registration spots are limited and we expect a capacity webinar event.    Please register now to claim your spot.

Conclusion

We would like to iterate clearly that based on recent developments and trends we see,  we are recommending that H-1B amendment petitions be filed when there is a change of job location all the time and before the placing the H-1B worker at the new jobsite.     We are also happy to work with our clients to make a comprehensive compliance plan for prompt and cost-effective LCA/H-1B compliance.    H-1B employers who routinely place workers at third-party worksites should consider making such LCA/H-1B compliance plans.   Contact us to allow us to evaluate your needs and provide suggestions for compliance planning.

We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  In the meantime, please do not hesitate to contact us with any questions or comments, or if we can be of any assistance with analyzing or filing H-1B petitions, including amendments.

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Alert: FY2016 H-1B Cap Demand Among Highest Ever; Random Lottery Just Completed

Our office just learned that the U.S. Citizenship and Immigration Service (USCIS) has completed the intake and processing of all of the fiscal year (FY2016) H-1B cap petitions.    According to USCIS, there were nearly 233,000 H-1B cap petitions filed during the April 1st-7th filing period.   This marks a 35% percent increase in the number of H-1B cap filings this year compared to last year’s cap season and this year’s demand is historically high.

The Lottery Has Been Completed

USCIS also just announced that they have just completed the computer-generated random selection process, or lottery, to select these petitions which would be reviewed to meet the 65,000 general-category cap and the 20,000 cap under the advanced degree exemption.      The process involved running the random selection for the advanced degree exemption (20,000) first with all remaining unselected advanced degree petitions then becoming part of the random selection process for the 65,000 limit.

This means that the chance of an H-1B petition to be selected under the random H-1B lottery is less than 50%; in some cases the chance of selection may be as low as 30%.

Premium Processing 15-day Clock to Begin April 27th

H-1B cap petitioners who requested premium processing should note that the 15-day premium processing clock would not start until April 27th.

Next Steps and Timelines

Premium Processing Email Receipts.  USCIS will first focus on processing the selected premium processing H-1B cap petitions.   We expect that over the next 2-3 weeks we will start seeing email receipt notifications for premium processing cases.

Regular Processing Receipt Notices.  Shortly afterwards, perhaps around late April, we should start seeing paper receipt notices indicating acceptance under the lottery for regular processing H-1B cap cases.

H-1B Lottery Rejection Notices.  The H-1B lottery rejection notices are likely to be processed last, and given the fact that there will be about 150,000 such rejection packages, we expect that rejection packages will be sent out in late May or even June.

H-1B Cap-Exempt Petitions Still Accepted

It should be noted that USCIS continues to accept cap-exempt H-1B petitions.   These are petitions generally filed by universities and non-profit research organizations (read more about cap-exempt employers).  Also, H-1B extensions and H-1B transfers and concurrent H-1B petitions for a second employer are cap-exempt and can be filed at any time and outside of the H-1B cap filing season.

Conclusion

The FY2016 H-1B cap numbers are not very surprising to our office based on the demand we saw during the January-March H-1B cap preparation period.    The reasons for the high H-1B demand this year may be caused by the improving economy.   Another reason may have been the self-fulfilling prediction by USCIS in March that they expect that the cap would be reached during the first week.

We will continue to monitor developments related to this year’s H-1B cap filing season.    In the meantime, please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics. If our office can be of any help, please feel free to contact us.   We are also inviting those who are interested to sign up for our FREE webinar on H-1B Cap Alternatives.

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