USCIS released guidance on May 22, 2015 to clarify Administrative Appeal Office (AAO)’s precedent decision on April 9, 2015 on Matter of Simeio Solutions, LLC that all employers must file amended H-1B petitions when a new Labor Condition Application for Nonimmigrant Workers (LCA) is required due to a change in the H-1B worker’s worksite location.

When Must File an Amended Petition

In Matter of Simeio, AAO ruled than a material change occurs when an H-1B employee moves to a new location outside the geographic area of the LCA that was originally filed for the employee’s H-1B petition. Whenever there is a material change, an amended H-1B petition is required. Employers whose H-1B employees changed locations before or after this April 9 ruling to outside of the geographic area covered by the previous LCA are now all required to file amended H-1B petitions.

Exceptions apply if 1) your H-1B employee is moving to a new job location within the same metropolitan statistical area (MSA) or area of intended employment, 2) it is a short term placement for up to 30 days and in some cases 60 days where the employee is still based at the original location, 3) the employee is only going to a non-worksite location, such as participating in conferences, seminars, or occasional travels for short periods.

If the amended H-1B petition is denied, but the original petition is still valid, USCIS allows the H-1B employee to return to the worksite covered a prior H-1B petition that remains valid.

Employers may file another amended H-1B petition while an amended H-1B petition is pending as long as every amended petition meets the requirements for the H-1B classification and any requests for extensions of stay. If the H-1B employee’s status expires while successive amended petitions are pending, the denial of any petition or request to amend or extend status will result in the denial of all successive requests to amend or extend status.

August 19 is the Deadline for Pre-May 21 Relocations

Employers who have not filed amended H-1B petitions for those employees must file no later than August 19, 2015. For those employers who have not yet filed amended H-1B petitions for workplace location changes that occurred after the ruling but before May 21, 2015 will also have until August 19, 2015 to file an amended petition. For moves to a new geographic location after May 21, 2015, the employer must obtain a new LCA from the Department of Labor and file an amended H-1B petition before relocating the H-1B employee.

Failure to file by the deadline will result in both the employer and H-1B employee being out of compliance and subject to adverse action.

Once the employer files the amended petition, the H-1B employee can immediately begin to work at the new location. You do not have to wait for a final decision on the amended petition for your H-1B employee to start work at the new location.

Tips for Employers

This ruling affects a lot on the employers in the consulting industry, where frequent employee relocations are necessary. Those employers must be especially careful in tracking their H-1B employees’ planned moves and make sure a new LCA and amended H-1B petition are filed before August 19, 2015 for pre-May 21 relocations and before they start work at a new location for post-May 21 relocations.

If you have any questions about H-1B worksite changes, please feel free to contact out firm for a consultation.

 

 

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After more than 10 years of practicing immigration law the Law Offices of Jacob J. Sapochnick is excited to announce the release of attorney Jacob Sapochnick’s new e-book called ‘My American Job’ now available on Amazon for purchase. An immigrant himself, attorney Jacob Sapochnick first came to the United States on a student visa while studying for his masters in International Law in San Diego, California. Attorney Jacob Sapochnick’s e-book, ‘My American Job’ aims to assist foreign born workers navigate the complicated process of immigrating to the United States and having a shot at the American Dream. Attorney Jacob Sapochnick provides guidance having firsthand knowledge of the process himself. In his book, he explains the indispensable resources foreign born persons have at their disposal, namely showing foreigners how to use the power of the internet and social media to gain access to American employers and instructing foreign born persons on how to obtain working visas and permanent residence through the employment based sections of our country’s immigration laws. ‘My American Job’ was created with you in mind. In his book, attorney Jacob J. Sapochnick, Esq. teaches foreigners how they can stand out, how they can access the open American market, and how to successfully apply for an employment based visa.

My American Job is a guide advising and preparing foreigners  physically, mentally and financially, to maximize their chances for long term job success, overcome misconceptions and objections U.S. employers have about hiring foreign workers, navigate the job application and interview processes, land the job they want including how to leverage social media sites, using LinkedIn, Facebook, Twitter, and Google Plus for job searching, how to adapt to U.S. business customs, ideas, etiquette, protocol, and more.

For more information on purchasing the e-book feel free to click the image above. For legal advice please contact our office.

14124480404_0dc3f97e69_zBy Ekaterina Powell, Esq.

For many years, it has been unsettled in the law and practice whether a change in H-1B employee’s job location is considered to be a “material change” in the terms of employment, requiring filing of an H-1B amendment petition.

Prior Guidance

According to USCIS unofficial guidance (Letter from Efren Hernandez, Director Business and Trade Branch of USCIS, to Lynn Shotwell, Am. Council on Intl’s Pers., Inc., dated October 23, 2003), an amended H-1B petition was not required if the only change was in the location of employment and if the Labor Condition Application (LCA) was filed for the new job location prior to the employee’s move.

Despite that, we have heard reports of recent USCIS site visits to the places of H-1B beneficiaries’ employment, which resulted in the revocation of H-1B approvals if USCIS could not find the employee at the job location stated on the H-1B petition despite a valid LCA filed prior to the employee’s move.

This uncertainly was troubling as USCIS refused to issue any further clarifications or policy changes.

Precedent AAO Decision – H-1B Amendment Required

On April 9, 2015, Administrative Appeals Office (AAO) has issued a decision in Matter of Simeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015) that finally put an end to the uncertainty surrounding the change in employees’ job location. The decision has been designated as a precedent and will be followed by USCIS in the H-1B adjudications and will be used by the consular officers during visa interviews.

In this precedent decision, the AAO revoked H-1B approval, finding there was a material change in beneficiary’s employment due to relocation to areas not covered by the original LCA and that an amended or new H-1B petition was required.

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On Monday May 4, 2015 a federal appeals court heard arguments in the case Joseph Arpaio v. Barack Obama, et al, U.S. Court of Appeals for the District of Columbia Circuit, No. 14-5325. Back in November of 2014 in the wake of Obama’s executive actions, Maricopa County Sheriff Joe Arpaio sued President Barack Obama shortly after he announced his executive order extending Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA)—a plan which would shield over 4.7 million eligible undocumented immigrants from removal proceedings. Arpaio along with 26 other states sued the administration claiming that the president had overstepped his executive power and that the executive actions were unconstitutional.

In the Arpaio case, two out of the three presiding judges from the District of Columbia ruled that Arpaio did not have standing to sue and that he had failed to prove that he was directly harmed by the executive actions. Arpaio had previously claimed that the executive actions directly harmed him because criminals would not be deported as a result of Obama’s executive actions. However, eligible recipients of extended DACA and DAPA would be required to demonstrate strong ties to the United States by providing documented evidence of their continuous residence in the United States, have no criminal record, and/or have U.S. born children.

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Today, May 4, 2015 USCIS announced that data entry for all H-1B cap-subject petitions has been completed for the 2016 fiscal year. USCIS is scheduled to begin returning all H-1B cap-subject petitions that were not selected in the computer-generated random lottery held early last month. Since USCIS received an unprecedented 233,000 cap-subject H-1B petitions (including master’s cap) we expect that it will take a few months for petitions that were not selected to be returned. USCIS has recommended that petitioners ask about the status of a submitted cap-subject petition only once the petitioner has received a receipt notice or until the unselected petition has been returned. USCIS will provide an announcement once all unselected petitions have been returned. Our office expects to receive the receipt notices for the remaining cap-subject petitions that have been selected in the lottery this week or the following week.

For more information please visit our website by clicking here.

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You have Questions, We have your Answers. Here are answers to 6 of our Frequently Asked Questions

In this blog we are answering 6 of your frequently asked questions in detail. Please remember that every case and every story is different and unique. You should not compare your situation to anyone else’s. We hope that our answers will provide you with further guidance on your immigration journey. For any further questions please visit our website or call our office for a free legal consultation. We thank you for your continued trust in our law office.

Q: I have my green card and I can file for citizenship in the near future but my marriage is not working and I am trying to figure out my options.

A: The first question our office would have for you is whether you have a conditional 2 year green card or a 10 year green card? If you have a conditional 2 year green card you must apply for the I-751 removal of conditions application in order to receive the 10 year green card. It is possible to file the I-751 application for removal of conditions, even if you are now separated and in the process of dissolving the marriage or if you are legally divorced. This is called seeking a waiver of the joint filing requirement for the I-751 removal of conditions application or what is typically referred to as the I-751 waiver. In order to do so, you will need to indicate on the I-751 Removal of Conditions Application that you are seeking a waiver of the joint filing requirement. To file for an I-751 Waiver you must be presently separated and in the process of dissolving your marriage or already be legally divorced. Filing for a waiver of the I-751 is very detail-oriented and a very time consuming process, given that the applicant needs to prepare a detailed personal statement providing a detailed timeline of the relationship from beginning to end, as well as detailed information regarding why the marriage broke down and the applicant’s plans for the future. In addition, the applicant must be prepared to provide documented evidence that the marriage was entered into in good faith and the relationship and marriage was bona fide. You should definitely seek the help of an accredited legal representative to assist you in order for your application to be successful.

If you already have the 10 year green card, you cannot apply for citizenship until at least 5 years have passed from the date of becoming a permanent resident. If you have any arrests or other criminal history you must consult with an attorney or accredited legal representative. We would be happy to assist.

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Today, April 28, 2015 the U.S. Department of Labor and Homeland Security announced two new rules governing the H-2B Visa Program. The first is a new interim final rule established for the purpose of reinstating and improving the H2B program and second, a final rule to establish the program’s prevailing wage methodology. These rules are designed to protect US workers allowing them to fairly apply to the same jobs being offered to H-2B workers. The rules are also designed so that employers can easily access temporary foreign workers at a time when American workers would be unavailable. The Department of Homeland Security will provide guidance for interim transition procedures that must be followed by US employers. Together, these rules will continue to support American businesses and the country’s economy as a whole bringing continuity and stability to the H-2B program by protecting workers via an improvement in prevailing wage methodology, working conditions, and benefits that must be offered to H-2B and US workers covered by these regulations.

These rules will include numerous provisions designed to expand recruitment of U.S. workers, include “real-time recruitment efforts,” require employers to recruit former US employees first before offering jobs to temporary foreign workers, and will establish a national electronic job registry.

For further information please continue to refer to our blog.

On April 13, 2015, USCIS has announced that it has reached the H-1B cap for fiscal year (FY) 2016. Nearly 233,000 H-1B petitions were received for this filing period, including petitions filed for the master’s cap, which is about 60,500 more in total than last year. Roughly, this year’s chances of being selected is about 36.5%.

As of our firm, about 18.4% of our cases were filed under master’s cap petitions and about 75% were filed in general bachelor’s cap, with remaining 6.6% being cap exempt petitions. 82.9% cases were filed with California Service Center and 17.1% were filed with Vermont Service Center.

USCIS has used a computer-generated random selection process to select enough petitions to meet the 65,000 general bachelor’s cap and the 20,000 master’s cap. USCIS conducted the selection process for the master’s cap petitions first. All un-selected advanced degree petitions then became part of the random selection process for the 65,000 limit.

USCIS will soon start depositing filing fees for the 85,000 selected petitions and returning all un-selected petitions with their filing fees, unless the petition is found to be a duplicate filing. To find out the lottery result earlier, petitioners may periodically check their bank record to see if their checks for filing fees are cashed.

On April 27, 2015, USCIS will begin premium processing for cap-subject H-1B petitions requesting premium processing, including petitions seeking an exemption for individuals with a U.S. master’s degree or higher.

Today, April 7, 2015, USCIS announced that it has reached the H-1B cap for FY2016. Before running the lottery, USCIS will complete initial intake for all filings received during the filing period.

Initial intake/review will sort out multiple or duplicate H-1B petitions filed by an employer for one employer.  Regulations require USCIS to deny or revoke those multiple or duplicative petitions that an employer files for the same H-1B worker, and they will not return or refund the filing fees.

USCIS will first randomly select 20,000 petitions from the U.S. Master’s cap petitions that will be processed. All unselected advanced degree petitions will become part of the random selection process for the 65,000 general limit. Rejected petitions will be returned to the attorney or employer along with the filing fees (except for multiple or duplicative filings by an employer for an employee). Due to the high number of petitions, USCIS is not yet able to announce when it will conduct the random selection process.

After the visa lottery is complete, USCIS will inform all the selected petition holders with their case number for case status tracking purposes within one week.

For those who filed for premium processing, please note that premium processing does not increase the change of being selected in the lottery, but may enable earlier notification of whether the petition was accepted or rejected. According to USCIS, FY2016 H-1B premium processing review will begin on May 11 or so. That’s to say, for those premium processing petitions that won the visa lottery, they should be able to hear back from USCIS by the end of May. Petitions filed without premium processing may take several months to process, but normally should be processed before October 1, 2015.

We encourage H-1B applicants to subscribe to the USCIS H-1B Cap Season email updates located on the H-1B Fiscal Year (FY) 2016 Cap Season Web page: http://www.uscis.gov/working-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/h-1b-fiscal-year-fy-2016-cap-season or keep following up with our blog updates for further FY2016 H-1B announcement.

 

Today, U.S. Citizenship and Immigration Services (USCIS) has reached the congressionally mandated H-1B cap for fiscal year (FY) 2016. USCIS has also received more than the limit of 20,000 H-1B petitions filed under the U.S. advanced degree exemption.

USCIS will use a computer-generated process, also known as the lottery, to randomly select the petitions needed to meet the caps of 65,000 visas for the general category and 20,000 for the advanced degree exemption.

USCIS will first randomly select petitions for the advanced degree exemption. All unselected advanced degree petitions will become part of the random selection process for the 65,000 general limit. The agency will reject and return filing fees for all unselected cap-subject petitions that are not duplicate filings.

Before running the lottery, USCIS will complete initial intake for all filings received during the filing period, which ended April 7. Due to the high number of petitions, USCIS is not yet able to announce the date it will conduct the random selection process.

USCIS will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed on behalf of current H-1B workers who have been counted previously against the cap, and who still retain their cap number, will also not be counted toward the congressionally mandated FY 2016 H-1B cap. USCIS will continue to accept and process petitions filed to:

  • Extend the amount of time a current H-1B worker may remain in the United States;
  • Change the terms of employment for current H-1B workers;
  • Allow current H-1B workers to change employers; and
  • Allow current H-1B workers to work concurrently in a second H-1B position. U.S. businesses use the H-1B program to employ foreign workers in occupations that require highly specialized knowledge in fields such as science, engineering and computer programming.

We encourage H-1B applicants to subscribe to the H-1B Cap Season email updates located on the H-1B Fiscal Year (FY) 2016 Cap Season Web page.