Visa Lawyer Blog

Articles Posted in Free Consultation

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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.

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The power of the purse has spoken and the Democrats have come out on top. On Tuesday March 3rd the Republican led House of Representatives passed a bill funding the Department of Homeland Security up until September of this year. The bill passed by a vote of 257 to 167, with 75 Republicans and 182 Democrats voting in favor of the bill. The bill included no mention of the Obama administration’s executive actions on immigration, causing a split within the Republican Party to vote on the bill. Conservative Republicans had said that if the bill did not include language opposing Obama’s executive actions they would not be supportive of the bill.

The leader of the House of Representatives, Boehner, placed the blame on Republican inability to break a Democratic filibuster in the Senate and for failing to impose conditions on the bill, a prerequisite for Republican votes. The outcome of the bill was a victory for Democrats who were able to effectively block the Republican agenda by preventing them from placing immigration restrictions on the bill.

Boehner has spent the last few months struggling to keep the Republic front united against Democrats in the Senate, who have pushed back against Republican pressure. During his re-election as speaker in January, some Republicans were re-considering voting for Boehner. Boehner still remains the subject of criticism within his own party; the only common denominator bringing the Republican Party together remains their hard line stance on immigration and border security. During a closed door caucus addressing the GOP, Boehner said that Republicans have one last card to play—Judge Hanen’s decision to halt implementation of President Obama’s executive actions on immigration. Hanen’s decision has proved a great cause for concern for Democrats. As previously reported, dozens of states came out of the shadows accusing Obama of overstepping his executive power.

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As a refresher for our readers, earlier this week the federal government filed an expedited emergency motion to stay (prevent execution) of the injunction issued by the federal judge in Texas stopping implementation of expanded DACA and DAPA programs. The federal government warned in its motion that if judge Hanen did not act on the motion by the end of the business day on Wednesday (February 25), the government would move to the court of appeals.

As sources, such as Politico, report, the federal judge who issued the injunction indicated on Tuesday that he is not inclined to rush a decision on the federal government’s request to lift the injunction, which means that the next stop would most likely be the 5th Circuit Court of Appeal in New Orleans.

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Today, on February 24, 2015, USCIS announced that effective May 26, 2015 it will extend eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants to allow them to accept employment in the U.S.

Finalizing the H-4 work authorization was an important step toward implementation of the President’s executive action initiatives announced in November 2014 for a purpose to modernize and improve our immigration system.

Not all H-4 holders will benefit from the employment authorization. Under the new regulation, eligible individuals include H-4 dependents whose H-1B spouses:

  • Are the principal beneficiaries of an approved Form I-140, Immigrant Petition for Alien Worker; or
  • Have been granted H-1B status under sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000 as amended by the 21st Century Department of Justice Appropriations Authorization Act. The Act permits H-1B nonimmigrants seeking lawful permanent residence to work and remain in the United States beyond the six-year limit on their H-1B status.

In other words, only those H-4 dependents whose H-1B spouses are in the process of obtaining a green card through employment will be able to benefit from work authorization.

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By Ekaterina Powell, Esq.

As you may already know from reading our prior posts, on February 16, 2015, the Texas federal district court issued a preliminary injunction to stop expanded DACA (expanded guidance concerning deferred action for certain individuals who came to the United States as children) and DAPA (deferred action for the parents of U.S. citizens or lawful permanent residents) from going into effect. The case is known as Texas v. United States, the Lawsuit Challenging DAPA and DACA Expansion.

The decision came only two days before USCIS was supposed to start accepting applications under Expanded DACA guidelines issued by the President in November of 2014.

The decision was a surprise to many of those who were prepared to file their applications on February 18, 2015.

What does the preliminary injunction mean?

Since the preliminary injunction was issued, USCIS cannot accept any applications under expanded DACA, which was supposed to become effective on February 18, 2015, and will not implement its policies regarding DAPA, the program that was set to start in May 2015.

This injunction also affects those who file for extension of their existing DACA. Since expanded DACA rules have not become effective, USCIS will continue to issue employment authorization documents (EADs) for renewals of existing DACA requests for two-year periods as opposed to three-year periods.

What is a solution?

After the preliminary injunction was issued, the federal government promised to appeal the decision of the Texas district court in the Court of Appeals. However, an appeal can take a considerable amount of time and delay can detrimentally harm millions of families, causing unnecessary deportation for those who could qualify under expanded DACA and DAPA relief.

In order to prevent the harm caused by the appeal’s delays, today, February 23, 2015, the federal government filed an emergency expedited motion to stay,  pending appeal, its February 16 Order.

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Earlier this year, California DMV has started issuing AB 60 driver licenses, which are available to California residents regardless of their immigration status. This change became effective on January 1st, 2015.

AB 60 driver’s license can be used for personal identification and gives the right to legally drive in California but does not grant any other privileges. An AB 60 driver license looks the same as a regular driver’s license except for one feature. In the right corner, there is a pre-printed notation “Federal Limits Apply”.

If you want to get AB 60 driver license, you need to prove your identity and residency in the State of California, pass the knowledge tests and behind-the-wheel driving exams. In order to apply for AB 60 driver’s license, you need to make an appointment or visit DMV office.

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