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On Friday, May 22, 2015 USCIS announced that it would be temporarily suspending premium processing for all H-1B Extension of Stay Petitions beginning May 26, 2015 to July 27, 2015 due to the high volume of anticipated applications for employment authorization under the H-4 final rule. During this time period, petitioners may NOT file Form I-907 to Request Premium Processing Service for a Form I-129, Petition for Nonimmigrant Worker, requesting an extension of stay for the H1B nonimmigrant.  This temporary suspension will allow USCIS to implement the new regulation ‘Employment Authorization final rule’ for certain H-4 spouses which became effective on May 26, 2015. The suspension of premium processing applications for H-1B Extensions will allow USCIS to process applications for H-4 spouses in a timely manner and will help USCIS adjudicate applications for employment authorization filed by H-4 nonimmigrants.

All premium processing requests for H-1B extension of stay petitions that were filed prior to May 26, 2015 will proceed as normal.

USCIS will refund premium processing fees for H-1B extension of stay petitions filed prior to May 26, 2015 if USCIS did not take action within the required 15 calendar day period.

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On November 20, 2014 President Barack Obama announced a series of executive actions on immigration designed to repair our country’s broken immigration system.

Among its provisions, the executive actions on immigration outline plans to: strengthen border security, expand I-601A provisional waiver eligibility, modernize visa backlogs, expand eligibility for parole in place, improve parole procedures for researchers, inventors, and foreign entrepreneurs, revise removal proceedings–making criminals and those who pose a threat to our nation’s national security a priority for deportation, expand the existing DACA (Deferred Action for Childhood Arrivals) program to include a broader population of undocumented aliens (with no prior criminal history) who have continuously resided in the United States since January 1, 2010.  The expanded DACA program, under the new policy, would last a period of 3 years, rather than the 2 year period, granted under initial DACA.

In addition to expanding DACA, Obama also proposed a new program known as DAPA (Deferred Action for Parents of U.S. Citizens and Lawful Permanent Residents) extending eligibility of deferred action to eligible parents of US Citizen or LPR children born on or before the date of the President’s announcement on November 20, 2014. To read the complete DAPA eligibility requirements please click here.

These provisions were scheduled to go into effect on February 18th of this year, however, on February 15th a temporary injunction filed by Judge Hanen along with 26 states put these initiatives on hold. Following the filing of the temporary injunction, the Department of Justice filed an appeal in defense of Obama’s executive actions and an emergency motion for stay, requesting the executive actions to go forward despite the temporary injunction.

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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.

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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.

https://www.youtube.com/watch?v=OHsNd1J1hHk

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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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If a petitioner filed an FY16 H-1B cap petition in a timely manner for the fiscal year 2016 and has received notification from the delivery service used suggesting that there may be a delay or damage to the package, the petitioner may file a second H-1B petition.

The second H-1B petition must contain the following: a new fee payment, an explanation as to why a second petition is being filed with supporting evidence (such as the notice from the delivery service), and a request to withdraw the first petition.

If a second petition is sent without these items, it will considered a duplicate filing. USCIS would like to remind employers that it will deny or revoke petitions that are filed in the multiple or duplicate by an employer in the same fiscal year for the same H-1B employee, and they will not refund the filing fees.

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On March 4, 2015, the federal district court in the Northern District of Florida ruled in Perez v. Perez that the Department of Labor (DOL) lacks authority under the Immigration and Nationality Act (INA) to issue regulations in the H-2B program. This decision vacated and permanently enjoined DOL from enforcing the 2008 H-2B regulations. DOL was forced to immediately discontinue processing applications for temporary labor certification and can no longer accept or process requests for prevailing wage determinations or applications for labor certification.

On March 5, 2015, US Citizenship and Immigration Services (USCIS) announced that it is also temporarily suspending their adjudication of Form I-129 H-2B Petitions for Temporary Non-Agricultural Workers as these petitions require temporary labor certifications as issued by DOL. The government is considering the options to continue processing these petitions following the March 4 court decision. USCIS will continue to adjudicate H-2B petitions on Guam if those petitions are accompanied by temporary labor certifications issued by the Guam Department of Labor.

On March 6, 2015, USCIS suspended premium processing on all H-2B petitions until further notice. USCIS will issue a refund on all petitions filed using the premium processing service that were not acted upon by the agency within the 15 calendar day period.

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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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