August 2015 Newsletter
In This Issue
USCIS Issues Final Guidance on When To File Amended or New H-1B Petitions After Matter of Simeio Solutions
U.S. Citizenship and Immigration Services (USCIS) issued final guidance on July 21, 2015, on when to file an amended or new H-1B petition after the precedent decision in Matter of Simeio Solutions, LLC (Simeio).
USCIS said that Simeio, issued on April 9, 2015, represents the USCIS position that H-1B petitioners must file an amended or new petition before placing an H-1B employee at a new place of employment not covered by an existing, approved H-1B petition. Specifically, an H-1B employer must file a new 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 place of employment.
On May 21, 2015, USCIS issued draft guidance and solicited public comment on the implementation of Simeio. After considering the feedback submitted, USCIS issued the new guidance, which is effective as of July 21. USCIS noted that although the final guidance responds to many of the comments received, some suggestions and inquiries were outside the scope of Simeio. USCIS said it will consider addressing those remaining questions, as necessary, in the near future.
In general, USCIS said, a petitioner must file an amended or new H-1B petition if the H-1B employee is changing his or her place of employment to a geographical area requiring a corresponding LCA to be certified to USCIS, even if a new LCA is already certified by the U.S. Department of Labor and posted at the new work location. Once a petitioner properly files the amended or new H-1B petition, the H-1B employee can immediately begin to work at the new place of employment, provided the requirements of section 214(n) of the INA are otherwise satisfied. The petitioner does not have to wait for a final decision on the amended or new petition for the H-1B employee to start work at the new place of employment.
The memo also notes when a petitioner does not need to file an amended or new H-1B petition. If a petitioner's H-1B employee is moving to a new job location within the same area of intended employment, for example, a new LCA is not generally required. Therefore, provided there are no changes in the terms and conditions of employment that may affect eligibility for H-1B classification, the petitioner does not need to file an amended or new H-1B petition. The petitioner must still post the original LCA in the new work location within the same area of intended employment.
Similarly, with respect to short-term placements under certain circumstances, a petitioner may place an H-1B employee at a new worksite for up to 30 days, and in some cases 60 days (where the employee is still based at the "home" worksite) without obtaining a new LCA or having to file an amended or new H-1B petition.
Also, if an H-1B employee is only going to a non-worksite location and there are no material changes in the authorized employment, the petitioner does not need to file an amended or new H-1B petition. A location is considered "non-worksite" if: (1) the H-1B employee is going to a location to participate in employee developmental activity, such as a management conference or staff seminar; (2) the H-1B employee spends little time at any one location; or (3) the job is "peripatetic in nature," such as in a situation where the employee's job is primarily at one location but he or she occasionally travels for short periods to other locations "on a casual, short-term basis, which can be recurring but not excessive (i.e., not exceeding 5 consecutive workdays for any one visit by a worker who spends most work time at one location and travels occasionally to other locations."
USCIS said that it will exercise discretion in several ways, specified in the memorandum, to accommodate petitioners who need to come into compliance with Simeio. For example, the memo noted that if an employer transferred an H-1B employee to a new location on or before April 9, the date of the Simeio decision, the agency generally will not pursue new adverse actions, even if the employer does not file an amended petition. The memo also specifies certain circumstances in which USCIS will pursue new adverse actions against employers or preserve adverse actions already begun.
Obama Administration Moves Forward With Executive Actions
On July 15, 2015, the White House announced progress and next steps in an effort begun in November 2014 to address problems in the U.S. immigration system through a series of executive actions. The next steps in this effort are summarized in a new report, "Modernizing and Streamlining Our Legal Immigration System for the 21st Century." The report includes a wide range of new actions that federal agencies are undertaking to improve the visa experience for families, workers, employers, and people in need of humanitarian relief.
Among other things, President Obama directed key federal agencies responsible for administering the legal immigration system to explore ways to modernize and streamline the system while helping the U.S. economy and improving services for applicants. Some of the recommendations summarized in the new report include:
Also, USCIS published a final regulation, effective May 26, 2015, extending eligibility for work authorization to certain H-4 spouses of H-1B workers who are on the path to lawful permanent resident status. USCIS also published a notice of proposed rulemaking on July 15, 2015, that would expand an existing process to provide provisional waivers to certain family members of U.S. citizens and lawful permanent residents seeking to obtain lawful permanent residence, thereby reducing family separation. The final rule will be published in spring 2016. The report notes that the Department of Homeland Security (DHS) is working to clarify the definition of extreme hardship, which must be proven by applicants seeking provisional waivers, and plans to release guidance on this issue in the near future.
Also, the report says that the Obama administration "continues to move forward" with expanding opportunities for foreign investors, researchers, and entrepreneurs. Toward that end, DHS plans to propose, consistent with its existing parole authority, a parole program for entrepreneurs who would provide a "significant public benefit"; for example, because they have been awarded substantial U.S. investor financing or otherwise hold the promise of innovation and job creation through the development of new technologies. DHS also will clarify guidance on the standard by which a national interest waiver can be granted, with the aim of promoting its greater use for the benefit of the U.S. economy.
The report also notes that DHS is evaluating the Optional Practical Training program for foreign students and graduates of U.S. universities, to determine how to enhance the program "in a manner that strengthens the program and improves training for students who will enhance American innovation and competitiveness, while protecting U.S. workers."
The report includes a number of goals on the technology front. For example, the Obama administration wants to provide applicants with a single "dashboard" that allows them to view their case status in the overall process. Currently, the report explains, applicants must check with DHS and the Department of State individually to view their current status. Ideally, the report says, this information would be aggregated, requiring that only one dashboard be checked for an overview of one's application, and all related components.
On the consular front, the report notes that officers do not have a consistent way of receiving feedback about the visa process, both overseas and in the United States, from key participants, such as applicants, petitioners, lawyers, and community groups. The report says this limits an exchange of information that might help clarify rules, reduce misinformation, and produce valuable insights about consular post processes. The Obama administration is directing the Department of State to share visa process information with key sectors of the public via messages and media with the goal of providing information and engaging in a two-way dialogue so their feedback and input are incorporated into the process.
A related goal is to increase public outreach and engagement efforts by consular posts. The report says that staff will engage applicants through a wide variety of avenues, including existing post websites and digital media, local organizations and websites, and other channels tailored to local conditions, to engage visa applicants and ensure diverse feedback.
USCIS Ombudsman Annual Report Notes Continuing RFE Issues
U.S. Citizenship and Immigration Services' (USCIS) Ombudsman's Office has published the 2015 Annual Report. Highlights include:
RFE issues. The Ombudsman's Office reviews issues involving temporary nonimmigrant petitions (H-2A, H-2B, H-1B, L-1, and O-1), investor immigrant petitions (EB-5), other immigrant petitions, and employment authorization applications. The Annual Report states that the Ombudsman continues to be concerned with the quality and consistency of adjudications and the issuance of unduly burdensome requests for evidence (RFEs). Last year's report discussed in detail RFEs that were "too often vague, unduly burdensome, or unnecessary," this year's report notes. The Ombudsman said that such RFEs "continue to delay adjudications and burden applicants and petitioners, particularly in the provisional waiver program and key employment-based categories." Providing adequate notice regarding filing deficiencies "is essential to the effectiveness of RFEs, but they are often general and fail to address evidence already in the record," the Ombudsman said, adding that this is especially important in cases in which applicants and petitioners are not afforded the option of an appeal or a motion to reopen or reconsider.
The report notes one example of an employer agent who submitted a request for case assistance with the Ombudsman. The agent had filed an H-2A petition on behalf of the employer on October 31, 2014, with a November 15, 2014, start date requested. USCIS issued an RFE on November 19, 2014. USCIS did not use the next-day-return courier envelope provided and instead sent the request by regular USPS mail. The agent did not receive the notice until December 1, 2014. Furthermore, the agent was confused by the duplicative nature of the RFE because the documents requested were submitted with the initial petition. The employer immediately submitted a duplicate copy of the documents to USCIS using overnight mail. The Ombudsman contacted USCIS, and assisted in having the agency review and adjudicate the H-2A petition within a day of the communication. The report states that a shift to electronic processing, whether via online submission or email, would result in faster processing.
Stakeholders continue to raise concerns about USCIS adjudication of nonimmigrant petitions for high-skilled beneficiaries, the report notes, including H-1B (specialty occupations), L-1A (intracompany transferee managers or executives), L-1B (specialized knowledge workers), and O-1 (extraordinary ability or achievement). Specifically, employers and their representatives have sent examples to the Ombudsman of RFEs that appear to be redundant, seeking documentation that was previously provided; unnecessary, requesting information that is irrelevant or exceeds what is needed to complete the adjudication; and unduly burdensome in scope or intrusiveness.
Petitioners have also provided the Ombudsman with examples of RFEs and denials in "new" office L-1A extension cases. In reviewing these extension filings, the report notes that "it is appropriate that adjudicators examine whether the petitioner is actually 'doing business,' to ascertain the specific job duties that will be performed by the beneficiary under the extended petition," and to consider the "staffing of the new operation, including the number of employees and types of positions held." Yet, in some instances, the report notes, "it appears that adjudicators are placing undue emphasis on whether the beneficiary is too closely connected to the actual production work or services offered by the petitioning entity." The report states that "L-1A managers and executives are in fact permitted to engage in some hands-on activities, provided these activities are secondary to their principal and essential duties."
In response to the concerns about RFEs, the Ombudsman said that trainings for adjudicators could be made more useful. "A training program on the preponderance of the evidence standard using detailed real-world case examples for each product line would better assist USCIS adjudicators [in determining] whether cases are approvable or deniable upon first review, resulting in the issuance of fewer, and more narrowly tailored RFEs," the report notes. The Ombudsman also continues to urge the agency to pilot an initiative requiring 100 percent supervisory review before an RFE is issued.
EB-5 program and employment-based processing. The report notes that although USCIS has hired new adjudicators and economists, it had 12,749 investor petitions (Form I-526, Immigrant Petition by Alien Entrepreneur) in its pending inventory as of March 31, 2015, with nearly 20 percent pending adjudication for more than a year, and that EB-5 processing times have been getting longer. The report notes that USCIS has provided technical assistance to Congress and is working with other DHS and government agencies to put safeguards in place to ensure program integrity.
Regarding employment-based immigrant petition processing, the report notes that in recent months USCIS has taken steps to review its longstanding policy on who is an "affected party" for purposes of appealing a decision on a Form I-140, Immigrant Petition for Alien Worker. The Ombudsman encourages USCIS to consider the significant case law and recognize legal standing for certain beneficiaries of a Form I-140 petition.
Matter of Simeio. The report notes that on April 9, 2015, USCIS's Administrative Appeals Office (AAO) issued a rare precedent decision addressing when a reassignment of an H-1B worker requires the petitioning employer to file an amended H-1B petition that is supported by a DOL certified Labor Condition Application (Form ETA-9035). As a precedent decision—one of only four issued in the last three years—the holding in Simeio is binding on all USCIS H-1B petitioning employers nationwide, the report notes.
Since the Simeio decision was issued without accompanying guidance, the Ombudsman hosted a national teleconference on April 30, 2015, to seek stakeholder feedback and identify outstanding issues. Over 650 external stakeholders and government officials participated in the call. Of utmost importance to the affected stakeholder community, the report notes, was how the decision would be applied to H-1B employees who were previously reassigned with no amended filing based on prior practice. On May 21, 2015, USCIS addressed some of these questions through its issuance of draft guidance, which established a 90-day time frame for employers to submit amended filings.
The report notes that the Simeio case had been pending before AAO for nearly four years, and that this new agency interpretation was made without first providing the affected stakeholder community an opportunity to provide its input. "Some large employers have informed the Ombudsman that the decision could cost them millions in additional legal fees and filing costs," the report states.
DACA. USCIS began accepting Deferred Action for Childhood Arrivals (DACA) renewal applications in June 2014. Approximately 15 percent of requests for case assistance submitted to the Ombudsman involved DACA renewal processing delays. The report notes that this year, Department of Homeland Security (DHS) Secretary Jeh Johnson directed USCIS to expand the provisional waiver program and to clarify "extreme hardship" factors.
Juveniles. In this reporting period, USCIS developed and implemented the In-Country Refugee/Parole Program for Central American Minors in El Salvador, Guatemala, and Honduras. The Ombudsman continues to be concerned with adjudications issues and processing delays in special immigrant juvenile petitions, fee waiver requests, and asylum applications. Among other things, the Ombudsman received numerous examples of special immigrant juvenile petitions in which USCIS issued RFEs requesting a wide range of records pertaining to the underlying state court dependency order, "essentially second-guessing the state court action." The report notes that in the near future, the Ombudsman will publish formal recommendations to improve processing of petitions for special immigrant juveniles.
Other issues. The Annual Report also discusses delivery of USCIS notices and documents; recording or withdrawal of legal representation; USCIS's calculation of processing times; and the agency's ongoing effort to move from a paper-based to an electronic environment.
The report is available here.
China Visa Availability Retrogresses in Some Categories in August, Other Categories Advance
The Department of State's Visa Bulletin for August 2015 reported an "extremely large increase" in applicant demand that has resulted in retrogressions in the China-mainland born employment-based third preference (EB-3) and "Other Workers" categories, to June 1, 2004, and January 1, 2004, respectively. The Visa Office said that "[e]very effort will be made to return those categories to the [previous] ... cut-off dates as quickly as possible under the FY-2016 annual limits. Those limits will take effect October 1, 2015."
Otherwise, most employment-based priority dates advanced. The EB-3 and "Other Workers" categories for the Philippines have once again become available, with a cut-off date in both categories of June 1, 2004.
The Visa Bulletin for August 2015 is available here.
Renunciations in Edinburgh
The US Consulate General in Edinburgh will now accept and act on applications for the renunciation of US citizenship. Previously, the US Embassy in London was the only place in the UK where renunciations could be accomplished. Please see the Consulate General's website for more information.
USCIS Resumes Premium Processing for Extension-of-Stay H-1B Petitions
As of July 13, 2015, U.S. Citizenship and Immigration Services (USCIS) has resumed accepting Form I-907, Request for Premium Processing Service, for all H-1B extension-of-stay petitions (Form I-129, Petition for a Nonimmigrant Worker).
Premium processing service had been suspended previously for I-129 H-1B extension-of-stay petitions starting May 26, 2015, to July 27, 2015. USCIS said the temporary suspension allowed the agency to implement the final rule on employment authorization for certain H-4 dependent spouses in a timely manner and begin adjudicating applications for employment authorization filed by H-4 nonimmigrants under the new rule. Premium processing remained available for all other types of I-129 H-1B petitions during the temporary suspension.
USCIS said it closely monitored its workloads and determined that the agency could resume premium processing service for H-1B extension-of-stay petitions as of July 13, 2015. In response to a query, USCIS's Service Center Operations Directorate responded, "We now will accept an I-907 on any H-1B [extension of stay]. If an I-907 was filed/received prior to 07/13/15 it will be rejected."
As a reminder, USCIS also noted that it will accept only the new version (edition date: 01/29/2015) of the I-907. The edition date is printed on the bottom left corner of every page of the form and instructions.
USCIS Media Campaign Highlights Citizenship Info, Tools
U.S. Citizenship and Immigration Services (USCIS) released a series of promotional materials on July 6, 2015, as part of its Citizenship Public Education and Awareness Initiative.
The effort is intended to raise awareness about the rights, responsibilities and importance of U.S. citizenship and provide information on the naturalization process and USCIS educational resources. The promotional campaign guides lawful permanent residents to the USCIS Citizenship Resource Center for "official, accurate and reliable information on citizenship and naturalization topics."
The media campaign includes print and digital advertisements in English, Spanish, Chinese, and Vietnamese; radio public service announcements in Spanish and Chinese; and video public service announcements in English and Spanish. Online digital advertisements will run until August 15, 2015. A second phase will begin in September, and will include additional print and digital media spots.
USCIS said this campaign "is part of a larger effort to demystify the [naturalization] process and provide lawful permanent residents with information to protect themselves against the unauthorized practice of immigration law."
USCIS noted that an estimated 8.8 million lawful permanent residents are eligible to apply for citizenship, and the median time spent as a lawful permanent resident before becoming a U.S. citizen is seven years.
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
We hope that our clients are enjoying our typically variable summer weather. Congratulations to our Business Administrator Charlotte Holloway on her upcoming marriage. We wish her many years of health and happiness with Luke.