June 2015 Newsletter
In This Issue
USCIS Suspends Premium Processing Until July 27 for Extension of Stay H-1B Petitions; New Form in Effect
U.S. Citizenship and Immigration Services (USCIS) has suspended premium processing for all H-1B extension of stay petitions until July 27, 2015. During this time frame, petitioners will not be able to file Form I-907, Request for Premium Processing Service, for a Form I-129, Petition for a Nonimmigrant Worker, requesting an extension of stay for an H-1B nonimmigrant.
Also, USCIS has implemented a new version of the I-907 (edition date: 01/29/2015) and will no longer accept previous versions as of June 1, 2015. USCIS issued the new version on May 1 and continued to accept old versions during the transition period, which ended May 31.
USCIS said the temporary suspension will allow the agency to implement its final rule on employment authorization for certain H-4 spouses in a timely manner and to adjudicate applications for employment authorization filed by H-4 nonimmigrants under the new regulations. USCIS said it anticipates receiving an "extremely high volume" of Form I-765 applications and needs to temporarily suspend premium processing "to ensure that we can provide good customer service to both H-1B petitioners and H-4 applicants."
The agency said it will monitor its workloads closely and "may resume accepting premium processing requests before July 27, 2015, if we determine that we can once again provide customers with the level of service offered with premium processing."
During the temporary suspension, USCIS will refund the premium processing fee if:
USCIS noted that petitioners may request expedited processing for their H-1B extension of stay petitions during the temporary suspension period. The agency said it will "review all expedite requests on a case-by-case basis and grant the requests at the discretion of the Director. The burden is on the petitioner to demonstrate that one or more of the expedite criteria have been met."
Information on how to request expedited processing is available here. The announcement is available here. The new I-907 is available here.
USCIS Releases Revised I-765 Application for Employment Authorization
U.S. Citizenship and Immigration Services (USCIS) recently published a revised Form I-765, Application for Employment Authorization, with an 02/13/15 edition date.
The revised I-765 contains the eligibility category (c)(26) for certain H-4 dependent spouses to apply for employment authorization. Those filing under the new H-4 rule should provide the receipt number of the H-1B principal spouse's most recent Form I-797 Notice of Approval for Form I-129.
While USCIS will continue to accept versions of the form with edition date 05/27/08 or later, H-4 applicants should use the 02/13/15 version of the form to prevent delays or the need for USCIS to issue a request for evidence.
The announcement is available here. For more information about the H-4 rule and eligibility for employment authorization under the rule, see here. A related list of frequently asked questions is available here.
When Should Employers File Amended H-1B Petitions After Simeio? USCIS Issues Draft Guidance
U.S. Citizenship and Immigration Services (USCIS) recently issued draft guidance following its Administrative Appeals Office (AAO) precedent decision, Matter of Simeio Solutions, LLC, which held that an employer must file an amended H-1B petition when a new Labor Condition Application for Nonimmigrant Workers (LCA) is required due to a change in the H-1B worker's worksite location. Specifically, the decision stated:
When To File or Not File
Employers must file an amended H-1B petition if an H-1B employee changed or is going to change his or her place of employment to a worksite location outside of the metropolitan statistical area (MSA) or "area of intended employment" (as defined at 20 CFR § 655.715) covered by the existing approved H-1B petition, even if a new LCA is already certified and posted at the new location.
Once the employer files the amended petition, the H-1B employee can immediately begin to work at the new location. The employer does not have to wait for a final decision on the amended petition for the H-1B employee to start work at the new location.
USCIS said employers do not need to file an amended petition in the following situations:
USCIS noted that to the extent possible, the employer should submit receipt notices of prior petitions. USCIS will determine, on a case-by-case basis, whether a petition was filed before the current I-94 expired.
The 2005 Aytes memorandum discussed above is available here. The draft guidance is available at http://www.uscis.gov/news/alerts/uscis-draft-guidance-when-file-amended-h-1b-petition-after-simeio-solutions-decision. Matter of Simeio Solutions, LLC, is available here.
Fifth Circuit Denies Emergency Stay of Preliminary Injunction Against DAPA and Expanded DACA
On May 26, 2015, the U.S. Court of Appeals for the Fifth Circuit denied the Obama administration's request for an emergency stay of a preliminary injunction against its Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program and expanded Deferred Action for Childhood Arrivals (DACA) program. In denying the request, the Fifth Circuit said that the government "is unlikely to succeed on the merits of its appeal of the injunction."
The district court previously determined that 26 states who challenged the DAPA and expanded DACA programs were likely to succeed on their procedural Administrative Procedure Act (APA) claim, so it temporarily enjoined implementation of the programs. Among other things, those states argued that the DAPA and expanded DACA programs are procedurally unlawful under the APA because they are substantive rules that are required to undergo notice and comment but the Department of Homeland Security (DHS) had failed to do so. The states also asserted that DAPA and expanded DACA were substantively unlawful under the APA because DHS lacked the authority to implement the programs even if it did follow the correct process.
Among other things, the district court had held that Texas had standing because it would be required to issue driver's licenses to DAPA and expanded DACA beneficiaries, and the costs of doing so would constitute a cognizable injury. Alternatively, the court held that Texas had standing based on a theory it called "abdication standing," under which a state has standing if the government has exclusive authority over a particular policy area but declines to act. The court entered the preliminary injunction after concluding that Texas had shown a substantial likelihood of success on its claim that implementation of the DAPA and expanded DACA programs would violate the APA's notice-and-comment requirements. The Fifth Circuit said it reached only the district court's first basis for standing—the driver's license rationale—"because it is dispositive."
The Fifth Circuit noted that the government's motion for a stay pending appeal was based on its insistence that the states do not have standing or a right to judicial review under the APA and, alternatively, that the DAPA and the expanded DACA programs are exempt from the notice-and-comment requirements. The government also argued that the injunction's nationwide scope was an abuse of discretion. The Fifth Circuit did not agree.
The Fifth Circuit will consider the government's appeal of the preliminary injunction, with arguments scheduled for early July.
The Fifth Circuit's opinion is available here.
USCIS Completes Data Entry of All FY 2016 H-1B Cap-Subject Petitions
U.S. Citizenship and Immigration Services (USCIS) announced on May 4, 2015, that it has completed data entry of all fiscal year 2016 H-1B cap-subject petitions selected in a computer-generated random process. USCIS will begin returning all H-1B cap-subject petitions that were not selected. The agency noted that due to the high volume of filings, the time frame for returning these petitions is uncertain, so USCIS would prefer not to receive queries in the meantime. USCIS will issue an announcement once all the unselected petitions have been returned.
For more information, click here.
DOL, DHS Publish Rules on H-2B Temporary Nonagricultural Worker Program, Related Prevailing Wage Methodology
In response to recent court decisions that the U.S. Departments of Labor and Homeland Security say have created significant uncertainty about the H-2B temporary foreign nonagricultural worker program, the agencies published an interim final rule on April 29, 2015, to reinstate and make improvements to the program, and a final rule the same day to establish the prevailing wage methodology.
The agencies said that these rules "strengthen protections for U.S. workers, providing that they have a fair shot at finding and applying for jobs for which employers are seeking H-2B workers, while also providing that employers can access foreign workers on a temporary basis when U.S. workers are not available." The rules include several provisions to expand recruitment of U.S. workers, including more recruitment efforts, requiring employers to offer work to former U.S. employees first, and establishing a national electronic job registry. They include worker protections with respect to wages, working conditions, and benefits that must be offered to H-2B and U.S. workers. They also establish the prevailing wage methodology for the H-2B program, reinstating the use of employer-provided surveys to set the prevailing wage in certain limited situations.
The agencies said they intend these rules to support U.S. businesses and the U.S. economy "by expeditiously reinstating the H-2B program and bringing certainty, stability, and continuity to the program in reaction to litigation on multiple fronts that has threatened to terminate employers' ability to use H-2B workers." The new rules also provide interim transition procedures.
The announcement is available here. The interim final rule is available here and the final rule is available here.
It's Not Your Imagination: U.S. Mail Delivery Is Slower Than Before
According to reports, approximately 20 to 50 percent of U.S. mail now takes an extra day to deliver, thanks in part to the U.S. Postal Service's eliminating first-class local overnight delivery starting in January and closing many mail processing plants in response to decreased demand. This slowdown is affecting delivery of immigration-related documents, such as approval notices, among others.
New Publications and Items of Interest
E-Verify webinar on demand. U.S. Citizenship and Immigration Services (USCIS) released an "E-Verify Webinar On-Demand" for employers on April 27, 2015. The free 20-minute video is available at http://www.uscis.gov/e-verify/e-verify-webinar-demand and can be viewed all at once or by topic. Other USCIS videos are available here.
Government Agency Links
Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State's latest Visa Bulletin with the most recent cut-off dates for visa numbers:
Hodkinson Law Group News
Another month of changeable weather, but hopefully June will be kinder to us, especially on 10th June when Team HLG will be running the Race for Life 5k.