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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with respect to the best compliance approach and in reaction to the Simeio decision, on May 27, 2015, USCIS issued Draft Guidance on When to File an Amended H-1B Petition after the Simeio Solutions Decision which became effective as of the date of publication even while it was under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  One of the main goals of the draft guidance was to (1) provide clarification on when an H-1B amendment is required and when it is not required and to (2)  establish a 90-day grace period, until August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We discussed and analyzed the May 27, 2015 Draft Guidance and you can read our analysis here.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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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.

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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

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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.

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July 2015 Visa Bulletin – EB-2 India Remains Unchanged; EB-3 Philippines Unavailable

The U.S. State Department has just released the July 2015 Visa Bulletin which is the tenth 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 and EB-3 China and that EB-3 Philippines is unavailable.

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

Below is a summary of the July 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 four (4) months to October 1, 2013.
  • EB-3 ROW and Mexico advance by six (6) weeks to April 1, 2015.   EB-3 Philippines is unavailable.   EB-3 China  remains unchanged at September 1, 2011 while EB-3 India  advances by only one (1) week to February 1, 2004.
  • The “other worker” categories for ROW and Mexico advance by six (6) weeks to April 1, 2015 while Philippines is unavailable.     Other workers China remains unchanged at January 1, 2006 while India  advances by only one (1) week to February 1, 2004.
  • EB-5 China advances by four (4) months to September 1, 2013.

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

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

  • FB-1 ROW, China and India move forward by one (1) month to October 1, 2007.   FB-1 Mexico remains unchanged at November 15, 1994 while FB-1 Philippines moves forward but by only two (2) weeks to March 15, 2000.
  • FB-2A moves forward again — this month the forward movement is by five (5) weeks to November 8, 2013 for ROW, China, India and Philippines.  It moves forward by five (5) weeks to September 15, 2013  for Mexico.

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

After several months of nice forward movement, this month’s Visa Bulletin lack of movement in EB-2 India may 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 this month is an indication that they have sufficient applications on file to use the available visa numbers for the remainder of the fiscal year.    However, as we are getting into the final two months of the fiscal year, it is possible to see additional forward movements in the August and September 2015 Visa Bulletins to accommodate any additional visa numbers who may be made available from other preference categories.

EB-2 China Advances Significantly; EB-3 China Moderate Forward Movement

EB-2 China continues to advance this month.  This month’s forward movement of 4 months, combined with last couple of months’ movements, are among the more significant movements in EB-2 China for some time.   EB-3 China, on the other hand, seems to experience significant demand and, as a result, there is no movement this month.

We had noted in our earlier Visa Bulletin alerts that the demand in EB-3 China is expected to rise with the forward date movement and it now seems that the Department of State is trying to moderate the demand by keeping the date steady.

EB-3 Philippines Unavailable

The significant demand in EB-3 for Philippines has caused the Department of State to move back the date significantly over the last few months and this month they are making this category “Unavailable.”   This means that there are no visa numbers available for EB-3 Philippines during July 2015.  This means that the government cannot authorize any visas for this category — no green card approvals are likely and no new I-485 adjustment of status applications can be filed (regardless of the priority date).

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 good news is that this month’s Visa Bulletin moves forward the cutoff date by four months to 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 July 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 July 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.

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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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H-4 Spouse EAD Lawsuit Preliminary Injunction Denied – Filings to Continue as Planned

In late April our office reported on the lawsuit challenging the H-4 Spouse EAD program and we have been monitoring the case over the past few weeks and especially since Thursday of last week when there was a hearing here in Washington, DC on the merits of the plaintiff’s request for a preliminary injunction aiming to stop the H-4 Spouse EAD program.    We are happy to report that Judge Chutkan has denied the plaintiff’s motion for a preliminary injunction against the H-4 Spouse EAD program.

Judge Chutkan’s Opinion

The opinion finds that the plaintiffs have failed to show that they will suffer irreparable harm if the H-4 Spouse EAD rule will become into effect.     Judge Chutkan reasons that, “At this stage, it is entirely speculative whether any H-4 visa holders will ever apply for IT jobs at [the former employer of one of the plaintiffs], IT jobs in California (where the members of Save Jobs reside), or IT jobs at all.”   As a result, the judge concludes that the standard for irreparable harm during a preliminary injunction is not met.

Additionally, the judge discusses that the alleged losses are highly speculative and that they “are not great enough to warrant the extraordinary remedy of a preliminary injunction.”     Finally, the judge finds that there is no imminent harm from the H-4 Spouse EAD rule becoming effective because the H-4 EAD application process is likely to take months and then the H-4 EAD holders may take more time to look for and find jobs.

H-4 Spouse EAD Program Continues on Track (Even Though Lawsuit Remains)

Our office has monitored closely this lawsuit from the time it was filed and we had a fair amount of confidence that the preliminary injunction is unlikely to be granted.     We would like to caution that the fact that the preliminary injunction was denied does not make the lawsuit go away.   The lawsuit continues to remain pending and until the lawsuit is withdrawn or dismissed, the challenge against the H-4 Spouse EAD rule remains in place.

We will continue to provide information on this rule and the pending lawsuit  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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USCIS Releases H-4 Spouse EAD Filing Process Clarifications and Guidance

On the eve of the H-4 Spouse EAD filing window (which opens on May 26, 2015), USCIS  has released a set of clarifications and guidance in connection with the H-4 Spouse EAD process.     Our office has been very active in the H-4 Spouse EAD process ever since the benefit was announced as a proposed rule in the summer of 2014 and we welcome USCIS’s providing guidance on a number of key issues.   Please see our separate article regarding eligibility rules and filing mechanics.

Four Outstanding Questions Answered (Mostly)

About a month ago, on April 23, we released a list of four major unanswered questions to USCIS in connection with the H-4 Spouse EAD process.   Specifically, we raised the question as to whether there would be concurrent H-4 status and H-4 EAD approval, whether there will be a way to deal with the “gap” between non-concurrent approval of H-4 status and H-4 EAD work authorization, whether H-4 EAD would apply for H-1B extensions beyond the sixth-year when part of the current H-1B/H-4 term is still within the initial sixth-year term and whether travel internationally during the time H-4 EAD remains pending would affect the process.

We now have answers to almost all of these questions and we appreciate USCIS’s efforts to provide clarifications.

Concurrently-Filed H-4 Change of Status and H-4 Spouse EAD Applications Will Not be Approved Concurrently

USCIS has confirmed that they would permit concurrent filing of H-4 status (change or extension) applications together with H-4 Spouse EAD applications.   In fact, it is now possible to file concurrently H-1B, H-4 and H-4 EAD applications.

However, USCIS is not expected to be able to adjudicate the H-4 EAD application concurrently with the H-4 (and H-1B, if applicable) change or extension of status applications.  USCIS has indicated that they would first adjudicate the underlying H-4 status application (together with any H-1B petition, if any) and only then they would turn to the concurrently-filed H-4 Spouse EAD application.    In this scenario, the 90-day EAD “clock” would not begin until a decision is made on the H-4 status application.

This suggests that there will likely be a significant work authorization gap between H-4 status approval and H-4 EAD approval.   USCIS, in their FAQ document, specifically clarify that the validity of the H-4 EAD will not be “backdated” from the H-4 status approval date and any employment before the H-4 EAD is approved will be considered unauthorized employment and violation of H-4 status.

These gaps in employment authorization are problematic for applicants who are switching from work-authorized status (such as H-1B, F-1 OPT/CPT and similar) to H-4 and are seeking continued work authorization.       We suggest very careful planning of any such H-4 status and H-4 EAD applications to avoid or minimize the period during which there is likely to be a gap in employment authorization.   One possible solution may be to try to file (significantly) ahead of time and request future starting date of the H-4 status and H-4 EAD.    Please contact us if we can analyze your case and provide options.

The H-4 Spouse EAD Will 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

We had raised this question last month and we are glad to see that USCIS addressed it.    USCIS have confirmed that in cases where the primary H-1B and the derivative H-4 period includes a portion of the initial six-year term plus time beyond the six-year term based on PERM or I-140 pending for more than 365 days under AC21 Sections 106(a) and (b), the H-4 EAD validity term will match the validity term of the H-4 status, including any period which is within the initial six-year term.

International Travel When an H-4 EAD Application Remains Pending Is Generally Permitted Without Having to Refile Another H-4 EAD Application After Return to the U.S. As Long as the H-4 EAD Was Filed When the H-4 Holder Was in the U.S.

USCIS has confirmed that the H-4 spouse must be in the U.S. at the time of filing to apply for the H-4 EAD – the reason is that the H-4 holder must be physically in the U.S. in order to provide evidence of H-4 status, which is a requirement.   A person who is outside of the U.S. does not have H-4 “status”.

USCIS has also confirmed that travel outside of the U.S. and reentry on H-4 status are permitted while the I-765 H-4 Spouse EAD application remains pending.   USCIS cautions, however, that H-4 spouses who have filed for EAD must meet all H-4 admission requirements, including having an H-4 visa stamp in their passports.     Additionally, H-4 Spouse EAD applicants who travel during the time their I-765 is pending should understand that if USCIS sends a request for information (request for evidence, RFE, or notice of intent to deny, NOID) on the case, they will need to ensure that the response is submitted timely (often within 30 or 84 days).

USCIS previously indicated that no Application Support Center (ASC) biometrics will be required as part of the H-4 Spouse EAD process.   The FAQ released today seems to contradict this by mentioning that travel while outside of the US may create “delays if [USCIS will] need to reschedule your appointment at an [ASC].”     We still believe that USCIS will not require biometrics to be completed as part of the H-4 Spouse EAD process but we will seek a confirmation on this point and provide an answer as soon as we can.   Please sign up to our newsletter to get updates.

Finally, with respect to travel, USCIS has cautioned that concurrent H-4 status and H-4 EAD applicants should not travel while they wait for their H-4 status and H-4 EAD applications to be approved.   Traveling outside of the US while an application for status is pending is likely to cause this status application to be denied due to abandonment.      Denial of the H-4 status application will also cause denial of the concurrently-filed H-4 EAD application.

Revised Form I-765 and Instructions Still Pending

The revised Form I-765 and the accompanying filing instructions are still not released for public use.   We expect this to happen at any day now, and likely on May 26th.     The current version of the I-765 form should remain valid for H-4 Spouse EAD filings until a new version of the form is released (and then during the transition period which is to be announced as well).

Unrestricted H-4 EAD Employment

USICS has confirmed that the H-4 EAD, once approved, will allow unrestricted employment to the H-4 spouse.   This means that the H-4 spouse can take any job, regardless of the qualifications of the H-4 spouse and regardless of the requirements of the position.   The job can be temporary or permanent, part-time or full-time, or an independent contractor position.    Additionally, self-employment and starting, owning a business, including hiring other people are allowed.    Please see our dedicated article on the types of employment permitted on H-4 EAD.

However, H-4 EAD holders should understand that they are authorized to work only during the validity of their H-4 EAD card.    This makes it critical to keep track of the expiration dates and to file extensions well (4 months, or more) in advance to avoid gap in employment authorization.

H-4 EAD Is Not a Travel Document

USCIS, and our office, would also like to caution that the  H-4 EAD is not a travel document and H-4 EAD holders who travel outside of the U.S. would need to have a valid H-4 visa stamp in their passport and be otherwise eligible for H-4 admission into the U.S. in order to be able to travel and enter the U.S.

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.    USCIS has already announced that they are expecting a high number of H-4 EAD filings and they have suspended premium processing service for some H-1Bs to allow them to allocate more resources to the H-4 EAD process.

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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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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