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Changes to Obligations for Filing H-1B Amendment Petitions Under Matter of Simeio Solutions, LLC

As of August 19, 2015, full enforcement of a recent Administrative Appeals Office (AAO) decision in Matter of Simeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015) will commence.

UUSCIS Final Guidance on L-1B Adjudications Offers Some Comfort—But No Cure—for Employer Concerns

On August 17, 2015, U.S. Citizenship and Immigration Services (USCIS) released a policy memorandum aiming to clarify the standard required for L-1B specialized knowledge visas.

Ever Evolving L-1B Adjudication Standards

Immigration law practitioners have been receiving Requests for Evidence (RFEs) on most L-1B (Intracompany Transferee-Specialized Knowledge) petitions for new issuance as well as L-1B renewals. These RFEs, requiring burdensome responses, in fact may misinterpret the term “specialized knowledge.”

2008 STEM Extension Dealt a Setback

The 2008 Department of Homeland Security (DHS) rule allowing certain F-1 visa students with Science, Technology, Engineering or Math (STEM) degrees to extend their stay for an additional 17 months of training related to their degrees in the U.S. is deficient, a federal judge for the U.S. District Court for the District of Columbia has held. The judge concluded the DHS rule was not properly subjected to public notice and comment. However, the judge permitted the rule to remain temporarily in effect. Washington Alliance of Technology Workers v. U.S. Department of Homeland Security, No. 1:14-cv-00529 (D. D.C. Aug. 12, 2015).

Work Program for Foreign Students: Changes are in the Offing After a Federal Judge Curtails the Program

On August 12, 2015, a federal judge in Washington D.C. ruled that the Department of Homeland Security (DHS) improperly enacted a 2008 rule extending “Optional Practical Training” (OPT) for eligible foreign students in STEM (Science, Technology, Engineering, and Math) fields by 17 months without notice and comment. Washtech (Washington Alliance of Technology Workers v. DHS, 1:14-CV-00529) Immediate application of this ruling would have jeopardized the employment of thousands of foreign workers in the United States, but Judge Ellen Segal Huvelle has stayed her ruling until February 12, 2016, providing DHS with an opportunity to submit this rule for proper notice and comment in light of the significantly disruptive impact that the court’s ruling would otherwise have.

BALCA Clarifies Regulatory Requirements for Newspaper Selection in PERM Cases

Finding that a DOL certifying officer (CO) had erred in finding the employer failed to advertise a job opportunity in a newspaper in the area of intended employment, as required by regulation, and denied a permanent labor certification, the Board of Alien Labor Certification Appeals (BALCA) has reversed the denial. Matter of Hoffman Enclosures In., d/b/a Pentair Technical Products, BALCA No. 2011-PER-01754 (Aug. 5, 2015).

Business Immigration Zone (BIZ): Back to School Edition

Summer is almost over and the 2015-16 school year is right around the corner. That’s why it is appropriate we focus on visas that are available to university professors, researchers and students in this edition of Business Immigration Zone.

Proposed Expansion of E-Verify Services and Obligations Could Add New Burdens for Employers

U.S. Citizenship and Immigration Services (USCIS) recently announced its intention to expand not only its E-Verify communication services but also implement new obligations for employers that participate in the E-Verify program (either voluntarily as a federal contractor or as required by state law). E-Verify is a USCIS sponsored, Internet-based system that compares information from an employee’s Form I-9 to data on file at the U.S. Department of Homeland Security and the Social Security Administration (SSA) to confirm employment eligibility. Several of these changes could create complications or increase potential burdens for employers that use the program.

USCIS Accepting Premium Processing Requests for H-1B Extension of Stay Petitions

USCIS has resumed acceptance of Form I-907, Request for Premium Processing Service, for all H-1B extension of stay petitions. Premium Processing Service had been suspended by USCIS for this type of filing as of May 26, 2015, in anticipation of a large number of applications for employment authorization by H-4 nonimmigrants under new regulation allowing for employment authorization for H-4 dependent spouses of certain H-1B employees. USCIS later announced that current workloads permitted earlier-than-anticipated resumption of the premium processing service.

USCIS Issues Final Guidance on Recent AAO Decision in Simeio

On Tuesday, July 21, 2015, U.S. Citizenship and Immigration Services (USCIS) issued its final guidance on the recent Administrative Appeals Office (AAO) decision in Matter of Simeio Solutions, LLC. Under Simeio, employers must file an amended H-1B petition, along with an updated Labor Condition Application (LCA), if an H-1B worker is moved to a location different from the one listed on the petition. USCIS clarified in May 2015 that a new petition is only required if the H-1B worker’s new site is outside the metropolitan statistical area (MSA) used in the initial petition. However, the original LCA must be posted at the worker’s new place of employment regardless of whether it is located within the same MSA as the worksite in the initial petition.