On May 21, 2015, the U.S. Citizenship and Immigration Services (USCIS) issued guidance on an employer’s obligation to amend an H-1B visa petition to report a change in the employee’s worksite location. This guidance is in response to the Administrative Appeals Office’s recent decision in Matter of Simeio Solutions, LLC, in which it determined that an employer must file an amended H-1B petition when a new Labor Condition Application for a Nonimmigrant Worker (LCA) is required due to a change in the H-1B employee’s location of employment.
Articles Discussing Employment-Related Visas.
On May 19, 2015, the U.S. Citizenship and Immigration Services (USCIS) announced it will temporarily halt acceptance of premium processing requests for all H-1B Extension of Stay petitions from May 26, 2015 through July 27, 2015.
The Department of Homeland Security (DHS) and the Department of Labor have jointly announced a new interim final rule governing the certification of the employment of nonimmigrant workers in temporary or seasonal non-agricultural employment under the H-2B visa category. The new rule comes in response to a federal court decision1 that held the Department of Labor lacked authority to implement the 2008 regulations previously used to certify H-2B temporary labor certifications. That court had issued a temporary stay of its order until April 15, 2015 and then extended this stay until May 15, 2015.
The United States Citizenship and Immigration Services (USCIS) has announced it will begin premium processing of H-1B cap cases on April 27, 2015. This means that if a company has already received a receipt notice for a cap-subject H-1B petition filed via premium processing, the 15-day window for premium processing will begin on Monday, April 27, 2015. Additionally, employers whose premium processing cases were selected in the H-1B case lottery should see an initial action on their case (an approval, request for evidence (RFE), or a denial) by May 12, 2015.
In an April 9, 2015, precedent decision, the Administrative Appeals Office (“AAO”) affirmed the California Service Center’s decision to revoke an H-1B petitioner’s approved petition for failure to file an amendment to report a change in the beneficiary’s employment location. See Matter of Simeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015). The California Service Center is a regional processing center of the U.S. Citizenship and Immigration Services (USCIS). The decision means that employers are required to file a certified LCA, as well as an amended H-1B petition, prior to moving an employee to a new work location, which represents a departure from prior USCIS guidance.
Executive Summary: On April 9, 2015, the Administrative Appeals Office (AAO) of the U.S. Citizenship and Immigration Service (CIS) issued a precedent decision affirming the California Service Center (CSC) Director’s revocation of an H-1B nonimmigrant visa approval issued to an IT services provider, Simeio Solutions, LLC (Simeio).
U.S. Citizenship and Immigration Services (“USCIS”) recently released statistics related to L-1B denial rates for fiscal year 2014, in response to a Freedom of Information Act (FOIA) request filed by the National Foundation for American Policy (NFAP). (Click here for NFAP’s report). The denial rate reached an all-time high of 35% in 2014. This is up dramatically from the denial rate in 2006 which was a mere 6%. Most disconcerting about this news is that regulations that provide for L-1B adjudication standards remain unchanged despite the spike in denial rates. Although USCIS has acknowledged the sharp increase in the denial rate, it has offered no justification for it and has not provided employers with any substantive guidance in preparing L-1B visa petitions.
Executive Summary: In a historic move, effective May 26, 2015, the Department of Homeland Security (“DHS”) will allow, for the first time, H-4 spouses of H-1B workers who are pursuing permanent residence (“green cards”) to apply for work authorization. DHS recognizes that the inability of H-4 spouses to work, through what is often a very lengthy green card process for the H-1B worker, may create financial and personal stressors for a household which can make the prospect of living in the U.S. long term unattainable. Given that such financial constraints can cause an H-1B worker to abandon his or her green card process and return overseas, resulting in the loss of talent and disruption to US businesses, DHS hopes that the change will encourage H-1B nonimmigrants to remain in the U.S. and see the process through to the end. In this way, DHS supports the retention of highly skilled H-1B workers and ensures that this talent remains in the U.S. to benefit our economy as opposed to the economy of a competitor nation.
Employers who employ F-1 students who will soon seek to change their status to H-1B visa holders should be aware of the potential implications and risks on the H-1B visa process stemming from F-1 employees’ international travel.
Employers who wish to sponsor H-1B workers for Fiscal Year 2016 can begin filing petitions on April 1, 2015 for a start date of October 1, 2015. The H-1B visa is used by businesses who wish to employ foreign nationals to work in a specialty occupation requiring theoretical or technical expertise. For FY 2016, cases will be considered accepted on the date that U.S. Citizenship and Immigration Services (USCIS) takes possession of the petition, not on the date it was postmarked.
Spearheaded by Sen. Jerry Moran (R-KS) and Mark R. Warner (D-VA), a group of six senators introduced a fourth attempt at the Startup Act (S.181). The Startup Act would provide immigrant entrepreneurs who create new jobs access to a specifically designated visa. The bill would also create new visas for foreign degree recipients in the science, technology, engineering, and math (STEM) fields.
Executive Summary: The U.S. Department of Labor (DOL) has just released a final decision and order rendered this past July by the Administrative Review Board (ARB), holding that an H-1B worker’s front pay claim against a former employer is cut off where it is clear that the worker changed employers and is the beneficiary of an approved H-1B petition filed by the new employer. In the Matter of Batyrbekov v. Barclays Capital (Barclays Group US Inc.), ARB Case No. 13-013, Final Decision and Order (ARB, July 16, 2014).
The U.S. Department of State has released the January 2015 Visa Bulletin, which summarizes visa availability for individuals seeking U.S. Permanent Residence. As compared to the December 2013 Visa Bulletin, some significant movement occurred in the oversubscription date (i.e., the date on which the availability quota was met) for employment-based visa categories.
It probably falls into the category of cult classic, but one of my favorite movies is 2000’s “O Brother, Where Art Thou?” starring George Clooney. To me, it is the Coen brothers at their finest. Loosely based on Homer’s “Odyssey,” the movie follows Everett McGill (Clooney) and his companions Delmar and Pete in 1930s Mississippi. At one point later in the movie, Everett finds his ex-wife and their kids. His daughter explains that her mom’s new beau is “bona fide:”
According to the American Association of Colleges of Nursing, the United States is projected to experience a nurse shortage as a generation of Americans age and the need for healthcare increases. This shortage in nurses could potentially be a problem for healthcare employers, but thanks to a new policy memorandum recently issued by the U.S. Citizenship and Immigration Services on July 11, 2014, healthcare employers may have a solution: the H1-B Petition.