Labor Immigration Law

United States Labor Immigration Law News and Analysis

News Alert Articles

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   The lawsuit continues to remain pending and until the lawsuit is withdrawn or dismissed, the challenge against the H-4 Spouse EAD rule remains in place.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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June 2015 Visa Bulletin – EB-2 India and China Continue to Advance Notably; EB-3 Philippines Another Major Retrogression

The U.S. State Department has just released the June 2015 Visa Bulletin which is the ninth Visa Bulletin for the FY2015 fiscal year.   The major headline in the upcoming month’s Visa Bulletin is the continued significant (5.5 months) forward movement in EB-2 India and the 12-month forward movement in EB-2 China.    EB-3 Philippines moves back again by two and a half years.

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

Below is a summary of the June 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 moves forward significantly by five and a half (5.5) months to October 1, 2008.  EB-2 China moves forward by twelve (12) months to June 1, 2013.
  • EB-3 ROW and Mexico advance by six (6) weeks to February 15, 2015.   EB-3 Philippines retrogresses (again!) by over two and a half (2.5) years back to January 1, 2005.   EB-3 China moves forward by four (4) months to September 1, 2011 while EB-3 India  advances by only one (1) week to January 22, 2004.
  • The “other worker” categories for ROW and Mexico advance by six (6) weeks to February 15, 2015 while Philippines retrogresses (again) by two and a half (2.5) years back to January 1, 2005.   Other workers China moves forward by six (6) weeks to January 1, 2006 while India  advances by only one (1) week to January 22, 2004.
  • EB-5 China now has a cutoff date of May 1, 2013.

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

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

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

Another EB-2 India Significant (but Slowing) Forward Movement

This month’s Visa Bulletin brings another significant forward movement in EB-2 India of five and a half months which is a bit less than last two months’ forward movements of about eight months.    Overall, EB-2 India has by about three years over the last few months so this is certain a good sign.      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).    However, it should be noted that the rate of forward movement is slowing down, suggesting that the Department of State may be trying to account for increasing demand in new filings and approvals in EB-2 India.

The Department of State had indicated that EB-2 India may move forward by four to six months per Visa Bulletin over the summer months  so we expect the forward movement in EB-2 India over the next few months to be similarly moderate.

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 12 months, combined with last month’s movement of fourteen months, are among the more significant movements in EB-2 China for some time.   EB-3 China also advances this month (after a significant retrogression two months ago) by four months.    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 retrogressing (two months ago) and then advancing gradually (last two months) the cutoff dates.

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 in the last month’s Visa Bulletin.   EB-5 China remains unchanged this month at May 1, 2013.   Further retrogression is also possible (not immediately expected) based on the number of demand from Chinese nationals in this category (which demand has been very strong recently).

EB-3 Philippines (Another) Major Retrogression

Unfortunately for many EB-3 Philippines applicants, the EB-3 category moves back by another two and a half years this month, in addition to last month’s retrogression by over seven years.  This is a significant retrogression caused by high demand in this category and the Department of State has indicated that additional retrogression may be needed as well.

It is important to note that EB-3/OW Philippines applicants who have a cutoff date which is current now and who would no longer be current as of June 1st to consider filing their I-485s immediately (if they are in the US) or take other steps to take advantage of the current priority date.   EB-3/OW Philippines candidates who have a priority date between July 1, 2007 and January 1, 2005 will be affected — please contact us for a consultation and analysis of your personal case situation.

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 June 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 June 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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Immigration Relief Options for Nepal Nationals Impacted by the Recent Disaster

After the recent earthquake in Nepal, our office is receiving a number of inquiries by Nepali nationals regarding relief options and alternatives in various U.S. immigration situations.   USCIS has also indicated that they would provide relief in a number of situations understanding that a disaster may affect the ability of an individual to maintain status in the U.S. or to otherwise comply with the relevant immigration regulations.

As a result, there are a number of options for Nepali nationals who are impacted by the recent disaster.   Please note that other foreign nationals may also be able to claim relief under these options if they can show that their ability to comply with immigration regulations has been impacted by the disaster.

Application to Extend (or Change) Status from within the U.S.

Nepali nationals can now obtain relief by having an application for extension or change of status approved after such application is filed after the authorized period of admission has expired.

Advance Parole – Expediting and Extending

USCIS permits re-parole of individuals already granted parole.  Also, extension of certain parole grants and expedited processing of advance parole applications is available.

Employment Authorization

USCIS would allow expedited adjudication and approval, where possible, of requests for off-campus employment authorization for F-1 students experiencing severe economic hardship.  As a result, Nepali students who are on F-1 status and would otherwise qualify for financial hardship EAD work permit can apply to do so on the basis of the disaster.   Similarly, USCIS would review favorably expedited processing of other pending EAD applications.

Fee Waivers

USCIS would entertain requests to have certain immigration fees waived based on the applicant’s inability to pay or similar hardship.

Immediate Relatives Immigrant Petitions

USCIS may permit expedited processing of immigrant petitions for immediate relatives of U.S. citizens and lawful permanent residents (LPRs) where either the petitioner or the beneficiary are Nepali nationals impacted by the recent events.

Foreign Assistance to LPRs Stranded Overseas

USCIS and Department of State are also willing to provide assistance to Lawful Permanent Residents (LPR) who are stranded overseas without immigration documents such as green cards.

Conclusion

We applaud USCIS’ willingness to accommodate the needs of certain Nepali nationals who are impacted by the earthquake.   Our office stands ready to assist affected Nepali nationals who need help with their immigration options.  Please contact us for a free initial consultation and analysis of your options.

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

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

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

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

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

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

Receipt of Rejection Packages Can Take Weeks

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

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

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

Conclusion

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

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H-4 Spouse EAD Lawsuit Update: H-4 EAD Program Still on Track

Our office has been receiving a number of inquiries about a lawsuit challenging the H-4 Spouse EAD program as it is about to become effective on May 26th.    We have been monitoring this lawsuit and related developments very closely as our office is helping many H-4 Spouse EAD applicants and as of the time of this article, we believe that the H-4 EAD program will come into effect as planned on May 26th.

The Lawsuit

The lawsuit was filed last week by a group of U.S. high tech workers and seeks to block the H-4 Spouse EAD program.   The main claim in the lawsuit is that the U.S. Department of Homeland Security/USCIS do not have the authority to implement this type of a rule.     The lawsuit seeks to invalidate the H-4 Spouse EAD program.    The lawsuit is Save Jobs USA v. DHS, Civil Action No. 1:15-cv-615, United States District for District of Columbia, filed on April 23, 2015.

Immediate Impact of the H-4 EAD Lawsuit

Our attorneys, in consultation with colleagues in the field,  have reviewed and analyzed carefully the complaint and it appears that the arguments put forth in this lawsuit so far may not be sufficient for blocking of the H-4 EAD rule.   For example, the arguments in this lawsuit mirror arguments made in similar prior lawsuits challenging other similar regulations, for example, challenges to the 17-month OPT STEM work permit extension rule.    Obviously, the 17-month OPT STEM extension rule is still valid, years after its implementation.    At this time, there does not appear to be hearing scheduled on this lawsuit.

Rule Expected to Become Effective, as Planned

At this time, we do not believe that there is cause for panic among the significant numbers of H-4 EAD qualified applicants and we believe that the H-4  Spouse EAD rule will continue and will become effective as planned on May 26th.

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

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

The Recent AAO Decision – Matter of Simeio Solutions, LLC

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Conclusion

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

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

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May 2015 Visa Bulletin – EB-2 India and China Continue to Advance Notably; EB-3 Philippines Major Retrogression; EB-5 China Cutoff Date

The U.S. State Department has just released the May 2015 Visa Bulletin which is the eighth Visa Bulletin for the FY2015 fiscal year.   The major headline in the upcoming month’s Visa Bulletin is the significant 7.5-month forward movement in EB-2 India and the 14-month forward movement in EB-2 China.    EB-3 Philippines moves back by seven years and EB-5 China now has a cutoff date.

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

Below is a summary of the May 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 moves forward significantly by seven and a half (7.5) months to April 15, 2008.  EB-2 China moves forward by fourteen (14) months to June 1, 2012.
  • EB-3 ROW and Mexico advance by three (3) months to January 1, 2015.   EB-3 Philippines retrogresses by over seven (7) years back to July 1, 2007.   EB-3 China moves forward by four (4) months to May 1, 2011 while EB-3 India  advances by only one (1) week to January 15, 2004.
  • The “other worker” categories for ROW and Mexico advance by three (3) months to January 1, 2015 while Philippines retrogresses by over seven (7) years back to July 1, 2007.   Other workers China moves forward by three (3) months to November 15, 2005 while India  advances by only one (1) week to January 15, 2004.
  • EB-5 China now has a cutoff date of May 1, 2013.

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

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

  • FB-1 ROW, China and India move forward by two (2) weeks to August 15, 2007.   FB-1 Mexico moves forward by one (1) week to November 8, 1994 while FB-1 Philippines remains unchanged at February 1, 2005.
  • FB-2A moves forward again, this month the forward movement is by one (1) month to September 1, 2013 for ROW, China, India and Philippines.  It also moves forward by one (1) months to August 8, 2013  for Mexico.

Another EB-2 India Significant Forward Movement

This month’s Visa Bulletin brings another significant forward movement in EB-2 India of seven and a half months which is very similar to last month’s eight-month forward movement.  Overall, EB-2 India has advanced by well over two years over the last few months so this is certain a good sign.      EB-2 India applicants with a priority date earlier than April 15, 2008 can now move forward with their applications (or expect approvals if they have already filed their I-485 applications).

The Department of State had indicated that EB-2 India may move forward by four to six months per Visa Bulletin over the next few months so we expect the forward movement in EB-2 India over the next few months to be similarly moderate.

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

EB-2 China continues to advance this month.  In fact, this month’s forward movement of 14 months is one of the more significant movements in EB-2 China for some time.   EB-3 China also advances (after a significant retrogression last month) by four months.   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 retrogressing (last month) and then advancing gradually (this month) the cutoff dates.

EB-5 China Cutoff Date

Based on significant demand in the EB-5 category from Chinese nationals, the Department of State has introduced a cutoff date for EB-5 China.     Further retrogression is also possible (not immediately expected) based on the number of demand from Chinese nationals in this category (which demand has been very strong recently).

EB-3 Philippines Major Retrogression

One significant development is the major retrogression in EB-3 and Other Workers Philippines.   The cutoff dates for these categories are set to move back by over seven years — from October 2014 back to July 2007.   This is a significant retrogression caused by high demand in this category.

It is important to note that EB-3/OW Philippines applicants who have a cutoff date which is current now and who would no longer be current as of May 1st to consider filing their I-485s immediately (if they are in the US) or take other steps to take advantage of the current priority date.   EB-3/OW Philippines candidates who have a priority date between October 1, 2014 and July 1, 2007 will be affected — please contact us for a consultation and analysis of your personal case situation.

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

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

The Lottery Has Been Completed

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

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

Premium Processing 15-day Clock to Begin April 27th

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

Next Steps and Timelines

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

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

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

H-1B Cap-Exempt Petitions Still Accepted

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

Conclusion

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

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

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