Labor Immigration Law

United States Labor Immigration Law News and Analysis

News Alert Articles

Breaking: October 2015 Visa Bulletin Revised – EB-2 India/China and EB-3 Philippines Revised Backwards

Just a few minutes ago, and just a few days before the October 2015 Visa Bulletin were to become effective, the U.S. State Department has released a revision to the October 2015 Visa Bulletin.   EB-2 India and China applicants, many of whom were the primary beneficiaries of the October 2015 Visa Bulletin two-tier cutoff date system, would be disappointed by the backwards revision of the Filing cutoff dates.

Revised Visa Bulletin Filing Cutoff Date Revision

The October 2015 Visa Bulletin revised the Filing cutoff date for employment-based cases as follows:

  • EB-2 India – moving backwards by two (2) years from July 1, 2011 to July 1, 2009.
  • EB-2 China -moving backwards by seventeen (17) months from May 1, 2014 to January 1, 2013.
  • EB-3 Philippines – moving backwards by five (5) years from January 1, 2015 to January 1, 2010.

As a result of the revised October 2015 Visa Bulletin, only those applicants whose priority date is earlier than the noted cutoff date can file their I-485 applications.      The impact of this revision is that thousands of applicants who were on the verge of filing I-485 adjustment of status applications will now be unable to do so.

Future Cutoff Date Movements

At this time, we do not know how quickly would the Filing cutoff dates move forward.   We are hoping for aggressive forward movement over the next months but given this sudden revision in the Visa Bulletin, we will seek input from stakeholders and provide on our website and weekly Newsletter.

Further Updates and News

We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  We also invite you to contact us if our office can be of any assistance in your immigration matters or you have any questions or comments about the October 2015 Visa Bulletin and its revision.

No comments

October 2015 Government Shutdown and Immigration: (How) Will It Affect Me?

While we are hopeful that this is not the case, it appears that the chances of the U.S. federal government shutting down on October 1st (the beginning of the new fiscal year) are increasing.   We would like to provide some information as to how a possible government shutdown would affect the immigration cases pending or to be filed shortly.   Our office has been receiving an increasing number of inquiries from alarmed clients as to what would happen should the federal government close on October 1 if a deal is not reached on the federal government’s budget.   (See latest Google News)

How Would a Government Shutdown Affect Immigration Cases?

There is no simple answer to this question, as some federal government agencies would continue to operate, some would close partially and some would close almost completely.  Since the last time this kind of shutdown happened just a couple of years ago (in 2013), we can look back at what happened then to anticipate what kind of services and agencies would remain open and what would close.  With respect to immigration, it appears that there would be some disruptions to pending cases and upcoming filings.   Generally, the government is likely to stop all non-essential, all non-self-funded and all non-contractually funded services.

USCIS Cases

Since USCIS is funded primarily through application fees, it is expected that most of its services and centers would operate normally, perhaps with slightly diminished staff.  Because USCIS is a government agency which relies on other government agencies to perform its services, there may be certain disruptions; however, overall, case processing at USCIS is expected to resume.   Border processing of immigrants and border enforcement activities would continue as they are deemed “essential.”   The E-Verify system is likely to be shut down and unavailable during a period of government shutdown but employers should still continue to process Form I-9s even if E-Verify is not operational.

Department of State – Visa Applications at Consulates and at NVC Should Continue

If the 2013 Shutdown is a guide, the Department of State (DOS) is expected to continue processing visa applications at a normal (or close to it) page.   It may still be prudent to try to avoid applying during a period of shutdown and perhaps expedite applications, if possible.

Cases processed at the National Visa Center (NVC) should not be affected as well by the shutdown as they are mainly processed by contractors under existing funding agreement.

Generally, the State Department has been designated to be a “national security agency” which means that it would continue working throughout the shutdown.   However, in the cases where State Department operations are in other federal buildings which are affected by the closure,  such State Department operations may be disrupted because of lack of access to the facility.

Department of Labor – LCA, PERM and Audits

Unlike USCIS and the State Department, the Department of Labor (DOL) is likely to be significantly affected by the (possible) shutdown and its LCA/PERM operations (and websites) are likely to be suspended for the duration of the shutdown.

Based on what happened during the 2013 Shutdown, in case of a shutdown, no new LCAs can be filed and pending LCAs will not be subject to the seven business day review requirement and will not be reviewed and certified until DOL reopens.  This is a significant problem for employers and employees who need to have a new LCA filed and approved in connection with an expiring H-1B petition or in connection with an H-1B amendment.    Without a certified LCA,  an H-1B petition with USCIS cannot be filed.    This can create significant challenge to many employers and individuals whose H-1B petitions must be filed or amended and especially for those individuals whose status may be expiring.    In the past and in exceptional circumstances, USCIS has agreed to accept H-1B petitions without a certified LCA; however, USCIS has not yet confirmed (as of the time of this article) that they would do so this time around.

Similarly, in an event of a shutdown, it will not be possible to file new PERM cases and pending PERM cases will be put on hold.   This also can be a significant problem to many because the PERM process has very strict deadlines and a PERM case (and its entire recruitment) may have to be redone if a PERM application cannot be filed within the applicable filing window.   Additionally, filing a PERM by a certain date is critical for many H-1B workers who are seeking to be able to continue extending their H-1B petitions beyond their six-year H-1B limit.     A delay in filing a PERM may cause certain H-1B workers to run out of H-1B time without an ability to continue extending H-1B on the basis of a PERM pending for more than 365 days.

On a related note, prevailing wage determination requests will also be shut down so no new requests can be filed and pending requests will be on hold.    A delay in the issuance of a prevailing wage determination may affect a number of PERM cases where there is a timing concern – such as six-year H-1B limit or expiring PERM recruitment.

Shutdown in DOL would mean that processing times and backlogs would be significant once the Government and DOL reopen.    If there is a shutdown, even after DOL reopens we expect that there will be a rush of LCA, prevailing wage and PERM filings.   Similarly, the cases already pending will have to be prioritized and reviewed.    This is likely to contribute to a delay in getting LCAs, prevailing wage requests and PERMs certified (especially since the PERM processing times are substantial already).

Conclusion

At this time, a week before October 1st, it is not clear whether there will be a shutdown.  Also, it is not clear what may be the full extent of the federal government shutdown.   But if a shutdown occurs, we anticipate some significant disruptions to government services affecting immigrants.  Perhaps the biggest disruption would be the delays or inability to file H-1B and/or PERM labor certifications.   While some of these affected cases would be able to withstand delay, there would be a number of urgent visa or petition cases which would need to be filed or processed.   The shutdown would also create a significant increase in the processing time backlogs for almost all immigration cases.   We urge clients who have time-sensitive cases which may be affected by a possible government shutdown to plan accordingly.

We stand ready to help analyze any cases which are time-sensitive and may suffer severe negative impact by the shutdown.  Please feel free to contact us.   Our office would also continue to monitor developments and provide timely updates.  Please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics.

No comments

October 2015 Visa Bulletin – Two-Tier Cutoff Date System Established, Likely to Help Many File I-485s Earlier

The U.S. State Department has just released the October 2015 Visa Bulletin which is the first Visa Bulletin for the new FY2016 fiscal year.   The major headline in the upcoming month’s Visa Bulletin is the significant restructuring of the Visa Bulletin cutoff system and the introduction of “approval” and “filing” cutoff dates which are likely to allow many applicants from retrogressed countries to file I-485 applications.

September 25, 2015 Update:  Please note that the October 2015 Visa Bulletin was revised in material way.  Please see our article on the revisions.

Creation of Two-Tier Cutoff Date System To Allow Earlier NVC/I-485 Filings

With the October 2015 Visa Bulletin, the Department of State (DOS) is introducing a two-tier cutoff system which is intended to allow applicants from oversubscribed countries and categories to possibly advance their immigrant cases even when there may not be a visa number available to them.

The “Application Final Action Dates” tier (which is consistent with prior Visa Bulletins) is the cutoff date which would determine when a pending I-485 or NVC/Consular immigrant case can be approved.   The idea is for DOS to be able to track much more closely the use and availability of visa numbers so that the “Application Final Action Date” would reflect a more accurate date as to when a green card can be approved.

What is the major change is the introduction of “Dates for Filing Visa Applications” cutoff date.  This will be used by USCIS to indicate that there are more immigrant visas available for the fiscal year than there are known applicants for such visas.   When this is the case, the Visa Bulletin would indicate a cutoff date for Filing Visa Applications which is earlier (by few years in many cases) than the “Application Final Action Date” and this would allow those applicants whose priority date earlier than the applicable Filing Visa Applications date to prepare and file their I-485 application.     Even though an approval of the I-485 cannot happen until the Application Final Action Date becomes current, the ability to file I-485 is going to provide an opportunity for family members to obtain work authorization and travel permits, in addition to the ability of the primary I-485 applicant to port their green card case to a new employer under AC21 after 180 days.

Note that the language in the Visa Bulletin seems to suggest that the ability to file I-485s with a priority date earlier than the Filing Visa Applications cutoff date may not be available all of the time.

USCIS has determined that this chart may be used (in lieu of the chart in paragraph 5.A.) this month for filing applications for adjustment of status with USCIS. (emphasis added)

This paragraph seems to suggest that not only the Filing Visa Applications cutoff dates are likely to move but also the ability to file I-485s with USCIS does not appear to be guaranteed every months.    We believe that DOS and USCIS and using this language to reserving the ability to stop I-485 filings during a specific time period.    We will monitor and seek clarifications on this point and report later as we have more information.

But back to the good news – those applicants with a priority date earlier than the Filing Visa Applications cutoff date are eligible to process their case and file I-485s as of the first of the month (October).

Summary of the October 2015 Visa Bulletin – Employment-Based (EB)

Below is a summary of the October 2015 Visa Bulletin with respect to the employment-based categories:

Employment Application Final Action Dates (determines when an I-485 or IV can be approved)

  • EB-1 remains current across the board.
  • EB-2 for ROW, Mexico and Philippines are all current.    EB-2 India retrogresses by eight (8) months back to May 1, 2005.  EB-2 China moves forward by six (6) years (!) to January 1, 2012.
  • EB-3 ROW and Mexico remain unchanged at August 15, 2015 which is almost current.   EB-3 Philippines has advanced by two (2) years to January 1, 2007.   EB-3 China  also advances by almost seven (7) years (!) to October 15, 2011.  EB-3 India  goes back by about nine (9) months to March 8, 2004.
  • The “Other Worker” (EB-3) categories for ROW and Mexico remain unchanged at August 15, 2015 which is almost current.   Philippines has advanced by two (2) years to January 1, 2007.   EB-3 China  also advances by two (2) years to January 1, 2006.  Finally, India  goes back by about nine (9) months to March 8, 2004.
  • EB-5 China advances by two (2) weeks to October 8, 2013.

Dates for Filing Employment Visa Applications (determines when an I-485 can be filed)

  • EB-1 is current across the board.
  • EB-2 for ROW, Mexico and Philippines are all current.    EB-2 India is set at July 1, 2011.   EB-2 China is set to May 1, 2014.
  • EB-3 ROW and Mexico are set at September 1, 2015 (which is almost current).   EB-3 Philippines is set at January 1, 2015.  EB-3 China is set at October 1, 2013.   EB-3 India  is set at July 1, 2005.
  • “Other Workers” (EB-3) ROW and Mexico are set at September 1, 2015 (which is almost current).   Philippines is set at January 1, 2015.  China is set at January 1, 2007.   India  is set at July 1, 2005.
  • EB-5 China is set at May 1, 2015.

September 25, 2015 Update:  Please note that the October 2015 Visa Bulletin was revised in material way.  Please see our article on the revisions.

Summary of the October 2015 Visa Bulletin – Family-Based (FB)

Below is a summary of the October 2015 Visa Bulletin with respect to some family-based categories:

Application Final Action Dates (determines when an I-485 or IV can be approved)

  • FB-1 ROW, China and India move forward by one (1) month to January 15, 2008, 2007.   FB-1 Mexico moves forward by one (1) week to November 22, 1994 and FB-1 Philippines moves forward by seven (7) months to June 1, 2001.
  • FB-2A moves forward again — this month the forward movement is by one and a half (1.5) months to April 15, 2014 for ROW, China, India and Philippines.  It moves forward by one (1) month to March 1, 2014 for Mexico.

Dates for Filing Visa Applications (determines when an I-485 can be filed)

  • FB-1 ROW, China and India are set at May 1, 2009.   FB-1 Mexico is set at July 1, 1995 and FB-1 Philippines is set at September 1, 2005.
  • FB-2A for all countries is set at March 1, 2015.

First Visa Bulletin For the Fiscal Year Brings Many Changes

The first Visa Bulletin for the new fiscal year always brings hope for good news and good forward movements in the cutoff dates.  This October Visa Bulletin goes beyond what we normally see at this time of the year.   The creation of the two-tier cutoff date system is something which we hope will allow many applicants from the retrogressed countries to move their case forward and obtain the benefits of a pending I-485 (where applicable) while at the same time provide a more stable “approval” date movement which, in turn, would create some predictability on how long one may have to wait for approval.

Live Chat and Webinar Sessions – Discussion and Analysis of the New Visa Bulletin Structure and How to Best Take Advantage of the New Two-Tier System

Our office is scheduling a series of events to discuss and analyze the restructuring of the Visa Bulletin cutoff date system and help our readers and clients understand how to best take advantage of the new category of cutoff dates.

  • Live Chat – Thursday, September 10, 2015, at 3 pm eastern time.    Join now or set a reminder.
  • Webinar – Monday, September 14, 2015, at 1 pm eastern time.   FREE registration but space is limited so please register now.

Additionally, we will be providing additional updates and alerts as there are more details about this change – if you haven’t already, please sign up for our newsletter.

Current “Date for Filing Applications”?

Our office stands ready to assist in the applicable process to take advantage of the significant restructuring in the way the cutoff dates are determined and published.    While many Indian applicants with pending I-485s may be disappointed that there is not much movement in the Application Final Action Dates, there will be many applicants across many categories who can now process their (and their family members’) I-485 Adjustment of Status applications from within the U.S. or process their immigrant visa at a U.S. Consulate abroad.

Please do not hesitate to contact us if our office can help you take advantage of this (very time-sensitive for some) opportunity to file I-485 applications.    We are also happy to provide a free quote for preparing and filing your I-485 application.

Further Updates and News

We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  We also invite you to contact us if our office can be of any assistance in your immigration matters or you have any questions or comments about the October 2015 Visa Bulletin.  Finally, if you already haven’t, please consider our Visa Bulletin Predictions tool which provides personalized predictions and charts helping you understand when a particular priority date may become current and what are the movement patterns.

No comments

17-Month STEM OPT Rule Vacated by District Court; Effective Date February 12, 2016

In an opinion dated August 12, 2015, the U.S. District Court for the District of Columbia vacated the Department of Homeland Security’s 2008 rule which extended the post-graduation optional practical training (OPT) by 17 months for eligible STEM students on F-1 visas.   The rationale was that DHS did not follow the normal rulemaking process which includes public comment period.   The court, however, ordered that the rule remain valid until February 12, 2016 in order to avoid substantial hardship to employers and F-1 STEM OPT workers and to allow DHS time to engage in a proper notice-and-comment rulemaking process.

Reasons for Striking Down the 2008 17-Month STEM OPT Extension Rule

The main reason behind vacating the 2008 rule, according to the court, is that DHS did not follow the normal rulemaking process which includes notice of the proposed rule and a comment period for the public to comment on the proposed regulation.   There are exceptions to the rulemaking process which allow agencies to implement rules without having to follow this process; however, the court took the position that none of the emergency rulemaking exceptions applies to the 17-month STEM OPT rule from 2008.    As a result, the court took the position that the rule was improperly implemented and should be vacated.

Vacatur Stayed Until February 12, 2016

Having vacated the rule, the court then agreed to put a temporary stay on the vacatur in order to avoid chaos (our words, not the court’s) which would inevitably ensue if all of the thousands of F-1 STEM OPT holders find themselves with invalid work permit.    To avoid a situation where thousands of recent F-1 STEM graduates will be left without work authorization (and possibly without status) and to avoid putting an undue burden on the employers who employ such workers, the court agreed to stay the vacatur until February 12, 2016, or six months from the date of the court order.

By leaving the rule in place until February 12, 2016, the court also intended to give DHS sufficient (but not too much) time to follow the normal public notice and comment rulemaking process.

The Rulemaking Process

At this time it may be helpful to remind our readers about the normal rulemaking process DHS will have to follow in order to reinstate the 17-month STEM OPT rule.

First, DHS will have to publish the proposed rule for the public to review for a specific period of time and during which period the public will have an opportunity to provide comments to DHS regarding the proposed rule.    After the comment period ends, DHS will review and consider comments made by the public and consider whether to change the proposed rules in any way.   Only once the final rule has been released and published by DHS would the rule become final and effective.

As a result of this rulemaking process, it may be months before the proposed rule would go into effect.   We do not know yet if DHS will submit the 17-month STEM OPT extension rule for public comment with any changes from their current form; it is likely that due to the limited time before February 12, 2016, DHS is not likely to amend the current rule substantially before they publish for public comment.

Are Current STEM OPT Holders Affected?

Certainly, they are affected in the sense that the government is about to engage in a process which may affect the STEM OPT program.    At this time, immediately after the court order, and at least until February 12, 2016, the STEM OPT work permits should remain valid and unaffected by this court order.

Similarly, we expect that USCIS will continue to process and approve 17-month F-1 STEM OPT extensions over the next six months as the rule continues to technically continue to be valid.

The main question is what happens over the next several months and whether DHS will be able to implement the new rule without any gap on and after February 12, 2016.   Ideally, DHS will be able to implement replacement rules (with same or similar substance) by February 12, 2016 and avoid any gaps in employment authorization or status to the thousands of F-1 STEM OPT workers.

However, it is not clear what would happen to the current F-1 STEM OPT workers if the rule is vacated on February 12, 2016 but the replacement rules are not effective at that time.    We will certainly monitor developments and clarifications on this topic (which are sure to be coming) over the next weeks and months and share with our clients and readers.

Is the H-4 EAD Rule in Jeopardy as a Result of This Court Order?

We do not believe that this court order vacating the 2008 17-month STEM  OPT rule suggests that the H-4 EAD rule challenge will be successful on the same reason.     The H-4 EAD rule, unlike the STEM OPT rule, did follow the normal rulemaking process.   The H-4 EAD challenge is still in its early procedural stages so we do not know what may happen in the future, but for now, the H-4 EAD rule remains unaffected by this court order vacating the STEM OPT rule due to rulemaking irregularities.

Conclusion

We understand that many F-1 STEM OPT holders may be alarmed by this court order.   At this time, we hope and believe that DHS will be able to follow the normal rulemaking process and “fix” the rule in time by February 12, 2016.     We expect that there will be a number of updates, clarifications and guidance on this topic over the next weeks and months and we will certainly monitor, share and analyze and such updated and developments.

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 F-1 STEM OPT or related matters.

No comments

September 2015 Visa Bulletin – EB-2 India and China Major Retrogression; EB-3 Advances Nicely; Last Visa Bulletin for Fiscal Year

The U.S. State Department has just released the September 2015 Visa Bulletin which is the last Visa Bulletin for the FY2015 fiscal year.   The major headline in the upcoming month’s Visa Bulletin is the major retrogression in EB-2 India and EB-2 China and the notable forward movement for almost everyone in EB-3.

Summary of the September 2015 Visa Bulletin – Employment-Based (EB)

Below is a summary of the September 2015 Visa Bulletin with respect to the employment-based categories:

  • EB-1 remains current across the board.
  • EB-2 for ROW, Mexico and Philippines are all current.    EB-2 India retrogresses by thirty-three (33) months back to January 1, 2006.  EB-2 China also moves back by almost eight (8) years to January 1, 2006.
  • EB-3 ROW and Mexico advance by one (1) month to August 15, 2015 which is pretty much current.   EB-3 Philippines has advanced by about six (6) months to December 22, 2004.   EB-3 China  also advances by six (6) months to December 22, 2004 (although after a substantial seven-year retrogression last month).  EB-3 India  advances again (significantly by its standards) by about six (6) months to December 22, 2004.
  • The “other worker” categories for ROW and Mexico advance by one (1) month to August 15, 2015 while Philippines advances by six (6) months to December 22, 2004.   Other workers China remains unchanged at January 1, 2004 while India  advances by six (6) months to December 22, 2004.
  • EB-5 China advances by three (3) weeks to September 22, 2013.

Summary of the September 2015 Visa Bulletin – Family-Based (FB)

Below is a summary of the September 2015 Visa Bulletin with respect to some family-based categories:

  • FB-1 ROW, China and India move forward by one and a half (1.5) months to December 15, 2007.   FB-1 Mexico remains unchanged at November 15, 1994 and FB-1 Philippines moves forward by seven (7) months to October 22, 2000.
  • FB-2A moves forward again — this month the forward movement is by two and a half (2.5) months to March 1, 2014 for ROW, China, India and Philippines.  It moves forward by three (3) months to February 1, 2014  for Mexico.

Last Visa Bulletin For the Fiscal Year Bring Wide Swings

Before we go into analyzing some of the wide swings in this month’s Visa Bulletin, we would like to caution that the last Visa Bulletin for the fiscal year in September generally brings wide swings – either in forward or backward movement for many categories.    The reason is that as the Department of State is approaching the end of the fiscal year, it is evaluating the remaining available visa numbers to be issued for the last month and adjusting the Visa Bulletin dates either to stop any new filings (retrogression, to reflect few, if any, remaining visa numbers) or encourage filings and approvals (forward movement, to reflect remaining visa numbers).

Normally, at the beginning of the new fiscal year, as the annual visa numbers reset, we see adjustments back to “normal” in the October and subsequent Visa Bulletin.

EB-2 India and EB-2 China Major Retrogression

Applicants in the EB-2 India and EB-2 China categories will be disappointed with the significant retrogression in these categories.  EB-2 India goes back by two and a half years while EB-2 China goes back by eight (!) years.      As noted, the reason behind this sharp retrogression is the significant demand and number of filings under these categories over the last few months as the dates were moving forward.   As a result, and in order to allocate the available green card visa numbers over the remainder of the fiscal year (September 30), the Department of State has decided to move back the dates significantly to essentially stop the rate of new EB-2 India and China filings (and more importantly, approvals).

It is our expectation that once the new fiscal year begins with the October 2015 Visa Bulletin the cutoff dates for EB-2 India and China will return to their July and August 2015 levels (approximately).

EB-3 Advances Nicely for (Almost) Everyone

In contrast to the EB-2 retrogression, the EB-3 categories advance nicely for almost everyone.    EB-3 ROW and Mexico are now at August 15, 2015, which is almost current and which essentially means that anyone whose PERM is certified is eligible to file for a concurrent I-140 and I-485 petition.    This is a great (and rare) opportunity for many folks in the EB-3 category.

Similarly, EB-3 India advances significantly again, giving hope to the many EB-3 India candidates whose priority dates used to move only by one week at a time.    We are hoping that USCIS will now be able to clear many of the long-pending I-485s (perhaps subject to medical and employment verification/AC21 RFEs).

Current Priority Date?

Our office stands ready to assist in the applicable process to take advantage of a current (or close to current) priority date.   Those applicants whose priority dates are current as of the September 2015 Visa Bulletin may be eligible to process their (and their family members’) I-485 Adjustment of Status applications from within the U.S. or process their immigrant visa at a U.S. Consulate abroad.

Please do not hesitate to contact us if our office can help you take advantage of this (very time-sensitive for some) opportunity to file I-485 applications.    We are also happy to provide a free quote for preparing and filing your I-485 application.

Further Updates and News

We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  We also invite you to contact us if our office can be of any assistance in your immigration matters or you have any questions or comments about the September 2015 Visa Bulletin.  Finally, if you already haven’t, please consider our Visa Bulletin Predictions tool which provides personalized predictions and charts helping you understand when a particular priority date may become current and what are the movement patterns.

No comments

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.

No comments

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.

No comments

August 2015 Visa Bulletin – EB-2 India Remains Unchanged, EB-3 India Advances Notably while EB-3 China Faces Major Retrogression

The U.S. State Department has just released the August 2015 Visa Bulletin which is the eleventh Visa Bulletin for the FY2015 fiscal year.   The major headline in the upcoming month’s Visa Bulletin is the lack of any movement in EB-2 India, the notable forward movement in EB-3 India and the major retrogression in EB-3 China.

Summary of the August 2015 Visa Bulletin – Employment-Based (EB)

Below is a summary of the August 2015 Visa Bulletin with respect to the employment-based categories:

  • EB-1 remains current across the board.
  • EB-2 for ROW, Mexico and Philippines are all current.    EB-2 India remains unchanged at October 1, 2008.  EB-2 China moves forward by two and a half (2.5) months to December 15 2013.
  • EB-3 ROW and Mexico advance by three and a half (3.5) months to July 15, 2015.   EB-3 Philippines is available again but with a cutoff date of June 1, 2004.   EB-3 China  retrogresses substantially by about seven years (!) to June 1, 2004 while EB-3 India  advances (significantly by its standards) by four (4) months to0 June 1, 2004.
  • The “other worker” categories for ROW and Mexico advance by three and a half  (3.5) months to July 15, 2015 while Philippines is available with a cutoff date of June 1, 2004.    Other workers China moves back by about two years back to January 1, 2004 while India  advances by four (4) months to June 1, 2004.
  • EB-5 China remains unchanged at September 1, 2013.

Summary of the August 2015 Visa Bulletin – Family-Based (FB)

Below is a summary of the August 2015 Visa Bulletin with respect to some family-based categories:

  • FB-1 ROW, China and India move forward by one (1) month to November 1, 2007.   FB-1 Mexico remains unchanged at November 15, 1994 and FB-1 Philippines also remains unchanged at March 15, 2000.
  • FB-2A moves forward again — this month the forward movement is by five (5) weeks to December 15, 2013 for ROW, China, India and Philippines.  It moves forward by five (5) weeks to November 1, 2013  for Mexico.

EB-3 China Major Retrogression

Many of our EB-3 China readers and clients will be alarmed by the significant retrogression in the EB-3 China category.    The reason behind this sharp retrogression is the significant demand and number of filings under the EB-3 China category over the last few months as the dates were moving forward.   As a result, and in order to allocate the available green card visa numbers over the remainder of the fiscal year (September 30), the Department of State has decided to move back the dates significantly to essentially stop the rate of new EB-3 China filings.

It is our expectation that once the new fiscal year begins with the October 2015 Visa Bulletin the cutoff dates for EB-3 China will return to their July 2015 levels  (September 2011).

EB-2 India Unchanged – Is Any Forward Movement Likely for the Rest of the Fiscal Year?

After several months of nice forward movement during the beginning and the middle of this fiscal year, this month’s Visa Bulletin lack of movement in EB-2 India, together with last month’s lack of any movement  would be disappointing to many EB-2 India applicants who were hoping for 2009 or 2010 cutoff dates by the end of the fiscal year.

EB-2 India applicants with a priority date earlier than October 1, 2008 can now move forward with their applications (or expect approvals if they have already filed their I-485 applications).    Over the last few months, in our Visa Bulletin reports we have been cautioning that the rate of forward movement is slowing down, suggesting that it may eventually stop or even retrogress.      The fact that the Department of State is not advancing EB-2 India over the last couple of months is a strong indication that they have sufficient applications on file to use the available visa numbers for the remainder of the fiscal year.

During a recent report Mr. Charles Oppenheim has also reported that he does not expect that there would be many EB-2 ROW spillover numbers which he can allocate to EB-2 India towards the end of the fiscal year; as a result, it appears likely that there may not be any additional forward movement in EB-2 India until the October 2015 Visa Bulletin.

EB-5 China Cutoff Date

Based on significant demand in the EB-5 category from Chinese nationals, the Department of State had introduced a cutoff date for EB-5 China over the last few months.   The cutoff date for this month remains unchanged at September 1, 2013.

Current Priority Date?

Our office stands ready to assist in the applicable process to take advantage of a current (or close to current) priority date.   Those applicants whose priority dates are current as of the August 2015 Visa Bulletin may be eligible to process their (and their family members’) I-485 Adjustment of Status applications from within the U.S. or process their immigrant visa at a U.S. Consulate abroad.

Please do not hesitate to contact us if our office can help you take advantage of this (very time-sensitive for some) opportunity to file I-485 applications.    We are also happy to provide a free quote for preparing and filing your I-485 application.

Further Updates and News

We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  We also invite you to contact us if our office can be of any assistance in your immigration matters or you have any questions or comments about the August 2015 Visa Bulletin.  Finally, if you already haven’t, please consider our Visa Bulletin Predictions tool which provides personalized predictions and charts helping you understand when a particular priority date may become current and what are the movement patterns.

No comments

USCIS Starts Issuing Approvals and Production of H-4 Spouse EAD Cards

One of the most frequent questions our office gets since and even before May 26, 2015 when the H-4 Spouse EAD filing window opened has been, “How long would it take to get the H-4 Spouse EAD approved?”    Because the H-4 Spouse EAD is a brand new program and especially due to the really high anticipated volume of H-4 Spouse EAD applications, we have not been able to provide a firm answer.    USCIS had indicated that their goal would be to issue EAD approvals within 90 days of filing.      But as our office is starting to receive H-4 Spouse EAD approvals and notifications of approvals, we are starting to get at least some preliminary idea of the processing times. Read more

No comments

Visa Bulletin Updates from Mr. Charles Oppenheim (June 2015)

Our office closely monitors not only each monthly Visa Bulletin but also any developments and updates from here in Washington, DC which may give us some idea on upcoming movements and surprises.   Our goal is to share any and all credible information with our clients and readers in order to allow proper planning and to set expectations as realistically as possible.

Mr. Charles Oppenheim, who is the Chief of the Visa Control and Reporting Division at the U.S. Department of State and the person who prepares and publishes the monthly visa bulletin, has provided some thoughts and his expectations for the upcoming few months’ Visa Bulletin movements.    These comments are as of June 12, 2015.

EB-2 Worldwide (ROW)

Mr. Oppenheim reiterated that there has been a significant increase in the demand of visa numbers in this category with demand far in excess of the historical patterns of the previous five months.    As an example, Mr. Oppenheim indicated that there was 80% demand increase from February to March 2015 and demand increased more than 100% between February and April 2015.     Despite this significant increase in demand in EB-2 ROW visa numbers, it is not expected at this time that there will be a cutoff date for this category and it is likely to remain current.

EB-2/EB-3 India

As a result of the significant forward movement in EB-2 India earlier this year, additional forward movement for the next few months is unlikely mainly due to EB-3 to EB-2 upgrades.  Additionally, because demand for EB-2 ROW has more than doubled unexpectedly over the past few months, EB-2 India cut-off date had to be held steady in the July 2015 Visa Bulletin. Unless there is a significant decline in EB-2 ROW demand, Mr. Oppenheim does not anticipate any forward movement in EB-2 India for the rest of this fiscal year (September 30).

EB-3 India is expected to continue to advance by one to two weeks per month.  This has been the recent trend over the past several months.

EB-2/EB-3 China

Demand in EB-2 China has been steady and gradual forward movement is expected over the next several months.     The EB-3 China cut-off date is expected to remain the same through the rest of the fiscal year (September 30).

EB-5 China

EB-5 China is expected to continue to advance,very likely as far as November 2013 towards the end of the fiscal year.

EB-3/Other Workers Philippines

After the category became unavailable in the July 2015 Visa Bulletin, it is expected to remain unavailable for the remainder of the fiscal year.

Conclusion

Mr. Oppenheim’s comments are extremely helpful to get a sense of the visa cutoff dates over the next few months.   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.  Finally, if you already haven’t, please consider our Visa Bulletin Predictions tool which provides personalized predictions and charts helping you understand when a particular priority date may become current and what are the movement patterns.

No comments

Next Page »