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.
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.No comments
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.
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.No comments
A recent report by the National Foundation for American Policy (NFAP) focused on the denial rates for the L-1B visas. In its March 2015 report NFAP analyzes denial rates over a number of years and for a number of different beneficiaries, from a variety of countries. The conclusion is that the denial rate for L-1B petitions is at an all-time high, with about 35% of all L-1B petitions being denied. For Indian nationals, the L-1B denial rate is an astonishing 56%.
Notable Points of the L-1B Denial Analysis
The overall denial rate for the 2014 fiscal year (FY2014) is 35%, a five-fold increase from the 7% denial rate in FY2007. The denial rate for L-1B petitions to transfer employees from Indian origin is 56%, while it is 13% for all nationals of all other countries. Canadians are at 4%, British nationals are at 16%.
L-1B extension petitions for workers who are already in the U.S. (and were granted L-1B once) have a higher denial rate (41%) than initial applications (32%) There is no clear explanation or reason behind this — presumably, once USCIS has granted an L-1B visa initially, an extension should be easier (in relative terms) to get approved. Apparently, this is not the case.
Requests for Evidence (RFE)s have continued to be at a very high rate – 45% of all L-1B petitions face an RFE, often requiring a very lengthy and time-consuming response. Some may think back to FY2004 when only 2% of the L-1B petitions faced an RFE.
The NAFP analysis, based on date obtained from USCIS under the Freedom of Information Act (FOIA), provides a fairly detailed overview of the challenges ahead of L-1B employers, especially those who wish to bring foreign employees from India. Our office witnesses first-hand the extremely time-consuming RFEs for a number of L-1B petitions and we share the concerns of our L-1B employer clients who face severe uncertainty in bringing key personnel to the U.S. on L-1B.
The concerns are particularly acute over the last two to three years where the annual H-1B cap has been exhausted over the first five days and has limited the options for bringing qualified foreign employees to the United States. With the H-1B cap gone in five days and extremely challenging L-1B adjudication process, foreign employers find in increasingly difficult to be able to bring talent to the U.S.
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.No comments
Our office just completed participation in the very-busy USCIS conference call to discuss and answer questions about the upcoming H-4 Spouse EAD rule. We are happy to share our immediate notes and reactions from the call to our readers. We also have upcoming engagement options for our attorneys to provide more information and answer further questions about the process.
Our Notes from the H-4 Spouse EAD Conference Call
I-140 Petition from Former Employer. One of the biggest questions about the H-4 Spouse EAD rule was answered – according to the panelists from USCIS, an approved I-140, even from a former employer, would permit an H-4 Spouse EAD when the H-1B spouse has started working for a new employer and the new employer has not obtained an approval of the new I-140. This is great news and was one of the biggest unanswered questions about the rule.
However, the panelists specifically indicated that a withdrawn I-140 petition by the former employer means that there is no longer “approved I-140″ and, as a result, there is no longer H-4 Spouse EAD eligibility.
Concurrent I-539 and -765 Applications Allowed. H-4 Spouse EAD applications (on Form I-765) can be filed concurrently with I-539 and even I-129 petitions, when the circumstances permit. It is expected that in many cases both the I-539 and the I-765 applications will be adjudicated at the same time.
H-4 EAD Validity. The term of H-4 Spouse EAD card validity is expected to be the same as the underlying H-4 status. The EAD will be valid from the date of approval until the H-4 status expiration date. But a valid EAD is required at all times to work – so proper planning for the extensions of status and EAD is key. The H-4 Spouse EAD will be valid for employment with any employer and there is no requirement that an H-4 Spouse EAD holder be employer at all times.
EAD Is Not a Travel Document. The EAD itself would not permit travel to the U.S. An H-4 spouse who has an EAD will need an H-4 visa stamp in order to travel back to the U.S. The EAD only allows employment during its validity period.
Mechanics of the Application Process. New Form I-765 with instructions will be released over the next days or few weeks. The application will be filed on paper (no electronic filing, at least for now) and must include full documentation of eligibility. In cases where certain documents are not available, providing as much relevant information as possible is key in order to allow USCIS to look up information about a case. The application does not anticipate (for now) having to do biometrics – instead, the application will request submission of photos.
Unanswered Questions. There were a few questions about some fairly complex situations which USCIS took under advisement and we should expect more information in future USCIS communications about the H-4 Spouse EAD rule. Our office will certainly provide more information about once we have any news.
Opportunities to Learn More and Discuss With Our Attorneys
To accommodate the great demand of clarification and create a public forum for this, our attorneys will be conducting series of Q&A events focuses solely on the H-4 Spouse EAD rule, as follows:
- Online Chat – Thursday, February 26, 2015 at 3:00 PM EST – free online chat session with Capitol Immigration Law Group attorneys to discuss the H-4 Spouse EAD rule and answer questions about the rule. Attend the live chat session.
- Webinar – Tuesday, March 3, 2015 at 1:00 PM EST – free webinar with a more detailed and formal presentation and discussion of the rule, its criteria, mechanics, requirements and challenges. Register for the free webinar (space is limited).
USCIS H-4 Conference Call Recording
For those who were not able to attend the call but wish to hear a recording, please follow this link.
We will continue to provide information on this rule as it becomes available. 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.No comments
Most non-U.S. citizens are required to report a change of their residential address within 10 days of moving within the U.S. or its territories. This requirement becomes even more important when there is an application pending with USCIS. The change of address notification is done by filing Form AR-11 electronically with USCIS.
Who Must File and Who Does Not Have to File AR-11?
The rule (8 CFR 265.1) is that all non-U.S. citizens in the United States are required to inform USCIS of their new address within 10 days of moving. There are exceptions: diplomats (visa status A); official government representatives to an international organization (visa status G), and certain nonimmigrants who do not possess a visa and who are in the U.S. for fewer than 30 days are not required to file AR-11.
U.S. citizens normally not required to a Form AR-11 with two important exceptions. U.S. citizen petitioners who are petitioners in an application (for example, I-130 filing) should inform USCIS and update their address on the pending application so that they receive correspondence relating to the case. Also, U.S. Citizens who have previously submitted a Form I-864 (Affidavit of Support) on behalf of someone who has become a permanent resident are legally required to notify USCIS of a change of address – in this case, a different form, Form I-865 must be submitted within thirty days of moving to inform USCIS of changed address.
Importance of Filing AR-11
It is important to follow and remember about this requirement for a number of reasons.
Perhaps most importantly, this is the law and there are penalties for non-compliance. A willful failure to give written notice to the USCIS of a change of address within 10 days of moving to the new address is a misdemeanor crime. If convicted, the alien (or parent or legal guardian of an alien under age 14 who is required to give notice) can be fined up to $200 or imprisoned up to 30 days, or both. The alien may also be subject to removal from the United States. (INA § 266(b)). Failure to comply could also jeopardize one’s ability to obtain a future visa or other immigration benefits.
Additionally, USCIS uses their most current address information to mail case-related information. This is true even if a case has been approved and closed for months or years.
Conclusion: Electronic Filing Options Make it Easy to File AR-11
Compliance should not be burdensome. USCIS allows electronic submission of Form AR-11 and compliance in most cases takes 5 to 10 minutes. There are no government filing fees associated with this filing. The form provides electronic confirmation and we urge everyone who files AR-11 to make and keep a record of the confirmed address change.
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 this or related immigration-related issues.No comments
USCIS has announced a change in their policy regarding the validity period of a Form I-693, Report of Medical Examination and Vaccination Record, when filed in support of a Form I-485 Adjustment of Status Application. Effective June 1, 2014, the I-693 medical report will be valid for one year from the date of submission to USCIS. This is in addition to the requirement that the I-485 applicant must submit the I-693 medical exam within one year of the actual medical exam date.
Background and Reasons for the Change of Policy
Before 2002, USCIS considered a Form I-693 medical exam valid as long as it was filed within one year of the civil surgeon’s signature. Since 2002, USCIS has kept this practice and has continuously extended the validity of the civil surgeon’s endorsement on the I-693 medical exam. As a result, timely-filed Form I-693 medical exam documents were automatically considered extended and “current” by USCIS.
After consultations with the Centers for Disease Control (“CDC”), USCIS has decided to change the policy regarding the validity of I-693 medical exams and to effectively discontinue the automatic validity extension policy. While we do not know the specific reasons for the policy change and any concerns raised by CDC, a possible reason may be the fact that under the prior automatic extension policy, there may have been applicants who have been waiting for I-485 adjudication for 3, 5, 7 or even more years and for those applicants the I-693 medical exam report on file simply does not provide an accurate picture of their health (and any health risks they may pose).
Policy Change Related to Increased Number of I-485 Requests for Evidence
This policy change is directly related to the increased number of recent requests for evidence (RFEs) on pending I-485 applications, especially for cases where the priority date is expected to be current over the next months. As we reported in our recent article, our office sees an increased number of RFEs which specifically request renewed I-693 medical exam report to be submitted back to USCIS. It seems that USCIS is using the need of a new I-693 medical exam report to also request additional items in their RFEs, such as employment verification documents.
It is helpful to see that USCIS has formulated a policy and a formal explanation to the medical exam validity period. This policy change helps explain the wave of recent (and upcoming) RFEs. We recommend that I-485 applicants who have had their I-485 pending for more than year to be prepared to respond to an RFE for medical exams, among other related items. This includes updating their mailing address with USCIS and ensuring that their attorney of record information on the I-485 is current.No comments
Our office had received a number of inquiries and we have worked with a number of individuals, universities and their DSOs who had seen a spike in OPT extension (STEM OPT extensions, most often) which were denied by USCIS due to the fact that the F-1 holder had engaged in volunteering or unpaid work during the term of their initial OPT term due to allegedly exceeding the unemployment maximum allowed for OPTs. After a number of inquiries to USCIS were raised, USCIS has announced that such denials were issued in error and will work on reinstating the applications (and status) to those F-1 holders who may be affected.
The USCIS Announcement
USCIS’s announcement is dated February 6, 2014 and states plainly that some 17-month OPT STEM extensions were denied in error. The relevant OPT policy guidance (SEVP OPT 2010 Policy Guidance, Section 7.2.1) states that:
“Unpaid employment. A student may work as a volunteer or unpaid intern, where this practice does not violate any labor laws. The work must be at least 20 hours per week for a student on post-completion OPT. A student must be able to provide evidence acquired from the student’s employer to verify that the student worked at least 20 hours per week during the period of employment.”
STEM OPT extension applications were denied (in error) solely because the USCIS adjudicator made the determination that the F-1 OPT holder exceeded the unemployment allowance (90 days for 1st year of OPT) and violated their F-1 status, thus making them ineligible for STEP OPT extensions. As it was clear and as it is confirmed now by USCIS, it appears that such denials were based on inadequate training and/or misinterpretation of the relevant guidance by USCIS adjudicators.
Was Your STEM OPT Extension Application Denied Due to Volunteering/Unpaid Work?
USCIS has created an avenue available to those whose STEM OPT extensions were denied solely on this ground. The student should contact the Service Center which issued the denial decision. Specific instructions are below:
If a student’s OPT STEM application was denied solely on the basis that he or she intended to work as a volunteer or unpaid intern, the student should contact the Service Center that issued the denial by sending an email message to the applicable dedicated student mailbox (listed below). In the email message, the student should provide his or her full name, as well as his or her USCIS receipt number relating to the denied OPT STEM extension application.
- California Service Center: CSC.StudentEAD@uscis.dhs.gov
- Vermont Service Center: VSC.Schools@uscis.dhs.gov
- Texas Service Center: TSC.Schools@uscis.dhs.gov
- Nebraska Service Center: NSC.Schools@uscis.dhs.gov
We are happy to hear that USCIS, upon making a determination of a pattern of incorrect decisions, has reversed course and has created an avenue to affected F-1 students to reinstate their F-1 status and OPT STEM application. Unfortunately, for many affected individuals this kind of announcement and relief may come too late. For example, some F-1 students whose STEM OPT extensions were denied have already left the US or have moved on to a different status.
Our office stands ready to assist F-1 students who may have been affected by this kind of STEM OPT denial. Please contact us for an evaluation of your case. Also, please visit us again or subscribe to our free weekly newsletter to ensure that you obtain this and related immigration-related news and announcements.No comments
The U.S. Citizenship and Immigration Service (“USCIS”) just announced that they have released the revised FormN-400, Application for Naturalization. The main changes in the new N-400 form are the new questions required by anti-terrorism and child soldier prevention statutes, the (according to USCIS) clearer eligibility instructions and the addition of a dynamic 2D data barcode feature. These changes, however, more than double the size of the N-400 form — the old version was ten pages while the new and current version is 21 pages long.
Form N-400 Changes
Perhaps the most obvious change to the N-400 form is the addition of a 2D dynamic barcode at the bottom of each page. This technology has been used increasingly by USCIS in a number of their forms. The idea is that as a user enters information on the form electronically (in PDF), the 2D barcode at the bottom of the page changes to incorporate the information provided on the form. During the intake processing of the application, USCIS would then simply scan the barcode on each page and the form data would be entered automatically into the system (more, and somewhat technical, information on the 2D barcode process).
In addition, USCIS has added questions to conform with the Intelligence Reform and Terrorism Prevention Act (IRTPA) of 2004 and Child Soldier Prevention Act of 2008. The additional information is important for USCIS to make a better determination of an applicant’s eligibility for U.S. citizenship. The questions relate not only to concerns surrounding good moral character but also to issues relating to the security of the United States.
And perhaps the most important change is that the new form has revised and more comprehensive instructions on general eligibility requirements intended to help applicants understand the naturalization application process. The N-400 form was not easy before the revision, now with an extra eleven pages, great instructions are critical.
Versions and Validity of N-400 Form
The new Form N-400 is available for download and is recommended to be used for all future N-400 U.S. Citizenship filings. On Monday, May 5, 2014, USCIS will no longer accept older versions of Form N-400. USCIS will reject and return previous versions of Form N-400 submitted after May 5, 2014.
Our office handles many N-400 U.S. citizenship applications and we would be happy to assist green card holders who are eligible to become citizens. Please contact us for an evaluation of your citizenship eligibility and for a process timeline and fee estimate. Also, please visit us again or subscribe to our free weekly newsletter to ensure that you obtain this and related immigration-related news and announcements.No comments
Unknown to many, the SAVE system allows DMV agencies throughout the United States to verify valid status of driving license applicants (where this is required). The SAVE system is run by DHS and allows states and agencies to confirm an individual’s status and eligibility to certain benefits. It all works well most of the time; however, there are instances in which the SAVE system does not have correct records and information and, as a result, delays in the application process are inevitable. This article explains the SAVE verification process.
What is SAVE?
The Systematic Alien Verification for Entitlements (SAVE) program is a service run by the Department of Homeland Security that helps federal, state and local benefit-issuing agencies, institutions, and licensing agencies determine the immigration status of benefit applicants so only those entitled to benefits receive them. Specifically, it is used by Department of Motor Vehicles (DMV) agencies throughout the U.S. to verify an applicant’s valid status in the U.S.
SAVE In Action
When a non-immigrant applicant for a driving license appears at a participating state’s DMV and submits a driving license application, one of the documents and information being checked is the valid immigration status of the applicant. Among other processing steps, the DMV clerk would input the applicant’s information into SAVE and SAVE would provide the government’s response with respect to status, validity and allow the DMV to make a determination whether or not the applicant is eligible for a driving license (or other benefit sought).
Please note that different states have different driving license eligibility requirements and not all states participate in SAVE – please check your state’s eligibility requirements and DMV rules.
SAVE Verification Problems
In most instances, nonimmigrants driving license applicants do not realize the existence of the SAVE system and that it may be a part of the DMV application process. However, there are cases in which SAVE provides the DMV a response indicating that the applicant cannot be issued a driving license. For example, SAVE may (correctly or incorrectly) indicate that the applicant’s status has expired. These are the kind of situations which would require (often) a significant time and effort to correct the SAVE record and be able to obtain a driving license.
Correcting SAVE Records
There are three levels of dealing with SAVE with respect to information which may be inaccurate.
First Step. SAVE begins verifying the legal status of nonimmigrants, immigrants and naturalized citizens with an initial verification (generally 3-5 seconds). This is the initial (and often transparent to the applicant stage). In most cases, the SAVE confirms the eligibility and the applicant continues with the DMV application process.
Second Step. SAVE returns a negative response. Additional verification is necessary in some instances where status cannot be verified through the first step. A second verification query will be automated but can take from as little as 3-5 working days to a few weeks to generate a response. The second step confirmation process is often initiated by the DMV’s SAVE office (not all DMV locations have a SAVE office – you should check with your state’s DMV to confirm which DMVs have SAVE offices). Also, different states have different procedures on invoking the second step – many states require the applicant to complete a form, which is then used in the SAVE clearance process. The applicant should be provided a SAVE case number and the status can be tracked online.
Third Step. A third query may be necessary where the verification is not confirmed through Steps 1 and 2. The DMV submits Form G-845 Document Verification Request with copies of an applicant’s proof of status documentation and immigration documents to the SAVE program who then verifies the person’s status manually. This may take two to six weeks in most cases and the case can still be checked online.
Unfortunately for some applicants, in the event SAVE does not return positive confirmation of their status, the correction process may vary from a few days to a few months. This makes it advisable to apply for a driving license as early as possible to minimize the chance that the applicant may be without a valid driving license for a period of time.
Pending Extension of Status Documents
Our office hears often from clients or readers who are seeking to extend their driving license while they continue their employment (or stay) in the U.S. pursuant to a pending application and who face SAVE or DMV issues because their I-94 card has expired.
Under the immigration law at 8 C.F.R. § 274a.12(b)(19), a timely filing of an extension of status request allows certain non-immigrants (H-1B, E-1, E-2, L-1A, L-1B, O-1, P-1, R-1) persons to stay legally in the US and work for 240 days past the expiration of the original I-94 or until adjudication of the application, whichever happens first. This is otherwise known as the “240 day rule.” A proper filing of the application and a pending status allows for continued lawful status/presence and authorization to work.
When the DMV refused to issue a driving license in this kind of extension situations, there are two common reasons. The first one is a DMV clerk who is not aware of the applicable regulations and who does not realize that certain extension of status applications allow status and permission to work. This may be a training issue at some DMVs and often this can be resolved by seeking to speak with a supervisor at the location.
In other cases, the SAVE system returns negative confirmation and in this case the applicant should work with the DMV and follow the steps outlined above to seek to correct the record and obtain SAVE clearance before a driving license can be issued.
While invisible to many, the use of the SAVE system throughout the driving license issuance process makes it an acronym some nonimmigrants learn very quickly. Other than filing proper paperwork and ensuring that one always maintains valid status, unfortunately, there is not much a nonimmigrant (or their employer or attorney) can do throughout the immigration process to ensure that SAVE records are correct.
We are hopeful that this article would help those who may need to deal with their DMV or to those who are in a SAVE verification process to better understand the process and their rights. We would love to hear SAVE stories from our clients and readers. 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 this article. Also, please visit us again or subscribe to our free weekly newsletter to ensure that you obtain this and related immigration-related news and announcements.No comments
USCIS has circulated a proposed draft of a redesigned and revised Form I-129 and has opened a public comment period on the proposed changes. The new form features a new design layout where most of the questions are the same but laid out slightly differently. There are some changes to the wording of some questions, but there are also some notable substantive changes on the form which may impact a number of I-129 filers. Specifically, one of the substantive changes on the form may impact notably beneficiaries who have certain ownership interest in the sponsoring employer.
Overview of Proposed Substantive Form I-129 Changes
Ownership Interest. The form now asks whether the beneficiary has any ownership interest in the petitioning employer and if the answer is “Yes,” the form asks for details of the beneficiary’s ownership interest. This is a new field and we believe it was added to allow USCIS to test the “employer-employee relationship” for many employers where the beneficiary has some ownership interest. This can be a significant issue for startups and entrepreneurs who have secured H-1B visa (for example) to allow them to work for their own company. Our office has dealt with this issue on numerous occasions and we see continued headwinds for entrepreneurs to obtain H-1B petition approval when the entrepreneur is a significant owner of the employer. Our office also has an upcoming webinar on entrepreneurs and H-1B.
Attorney Attestation. The form expands the attorney attestation section with respect to the accuracy and the quality of the information submitted on the form.
The public comment period ends on November 25, 2013 so we encourage anyone who wants to comment on the proposed Form I-129 revision to do so. We would continue monitoring this subject and provide updates to our clients and readers. Please do not hesitate to contact us if we can help you. Also, please visit us again or subscribe to our free weekly newsletter to ensure that you obtain related immigration-related news and announcements.No comments