USCIS Issues Final Guidance on When to File an Amended or New H-1B Petition

Following the decision of the Administrative Appeals Office (AAO) of USCIS, USCIS has issued a new Policy Memorandum to its employees outlining when an amended H-1B petition must be filed.

On April 9, 2015, AAO clarified that an employer must file an amended or new H-1B petition when a new Labor Condition Application (LCA) for nonimmigrant workers is required due to a change in the H-1B worker’s place of employment. Matter of Simeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015). The decision stated:

  •  “A change in the place of employment of a beneficiary to a geographical area requiring a corresponding LCA be certified to the Department of Homeland Security (DHS) with respect to that beneficiary may affect eligibility for H-1B status; it is therefore a material change for purposes of 8 C.F.R §§214(h)(2)(i)(E)and (11)(i)(A)(2014).”
  • “When there is a material change in the terms and conditions of employment, the petitioner must file an amended or new H-1B petition with the corresponding LCA.”

Accordingly, a petitioner must file an amended or new H-1B petition if the H-1B employee changes his or her place of employment to a location that requires a corresponding LCA, even if a new LCA is already certified with the Department of Labor.

A petitioner does not need to file an amended petition if a) there is a move “within the intended area of employment,” b) the placement is short term, and c) the H-1B employee is going to a non-worksite location. Each of these exceptions is discussed in detail in the Policy Memorandum.

The USCIS will exercise its discretion to varying degrees to accommodate petitioners. For petitioners whose H-1B employee moved to a new area on or before April 9, 2015, USCIS will generally not pursue new adverse actions. For petitioners whose employees move after that date, USCIS has created a chart in the Policy Memorandum to provide more specific instructions.

Customs and Border Protection to Begin Collecting Exit Data on Certain Foreign Nationals

U.S. Customs and Border Protection (CBP) has announced that it will begin collecting biographic and biometric data from some foreign national travelers in a test program when they depart the United States at Atlanta’s Hartsfield-Jackson International Airport

The biometric and departure data will be collected through use of an “enhanced mobile device” that will allow CBP to record exit information efficiently and streamline inspection queries for foreign national travelers. All test passengers will have their fingerprints and passports scanned by a CBP Officer using the mobile device on the loading bridge of selected flights departing the U.S. Each traveler’s departure data will be matched to the digital biometrics information that was collected when he or she arrived in the country. This information will be stored and managed by the U.S. Department of Homeland Security (DHS). Only non-U.S. citizens will have their information collected and processed.

The test program is expected run through June 2016, eventually expanding beyond Atlanta into the following major air travel ports: Chicago, Dallas, Houston, Los Angeles, Miami, Newark, New York, San Francisco, and Washington-Dulles. Jackson Lewis’ Immigration attorneys will continue to monitor CBP and DHS procedures for arriving and departing foreign nationals. We are available for questions and support as your employees navigate these requirements.

Arguments in Appeal of Texas Federal Court Injunction on Immigration Reform Executive Actions

The U.S. Court of Appeals for the Fifth Circuit, in New Orleans, heard arguments on July 10 as to whether a preliminary injunction on the implementation of President Barack Obama’s executive actions to defer deportation and grant work authorization to certain undocumented individuals presently in the U.S. should be overturned. The programs were enjoined by U.S. District Judge Andrew Hanen on February 16, 2015, and the injunction was upheld by the Fifth Circuit Court of Appeals on May 26, 2015.

During the July 10 hearing, the government argued that the executive actions are legally permissible as an exercise of prosecutorial discretion. The government maintains that because it is not able to deport the estimated 11 million undocumented individuals, it exercises discretion in targeting for deportation individuals with criminal records or other aggravating factors. Providing “deferred action status” and work authorization is a reasonable exercise of prosecutorial discretion, it asserted.

The plaintiffs are 26 states that originally challenged the administration’s actions by suit originally filed on December 3, 2014, claimed that the administration violated the “take care clause” of the Constitution (Article II, § 3, clause 5), and notice-and-comment requirements under the Administrative Procedures Act.

Judge Jerry Smith and Judge Jennifer Walker Elrod, two of the three appellate judges who affirmed the injunction against the government on its appeal of the injunction, appeared skeptical of the government’s position. In particular, the judges questioned whether issuance of work authorization for individuals granted deferred status is a benefit unlike prosecutorial discretion.

There is no timetable for issuance of a decision by the Fifth Circuit. The issue is ultimately expected to be decided by the Supreme Court.

Appeal of Injunction on Immigration Reform Executive Actions Set for Arguments

A three-judge panel of the U.S. Court of Appeals for the Fifth Circuit, in New Orleans, will hear arguments on July 10 as to whether a preliminary injunction on the implementation of President Barack Obama’s Executive Action policies affecting certain foreign nationals should be overturned.

“Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA)” and a policy that would expand the “Deferred Action for Childhood Arrivals (DACA)” were announced by the President in November 2014. Later that month, the Department of Homeland Security announced instructions for implementing DAPA and the expanded DACA.

Texas and 25 other states filed suit to stop these policies from being implemented. Judge Andrew Hansen, of the U.S. District Court Judge for the Southern District of Texas, granted the injunction in February 2015. The Fifth Circuit in May refused the government’s request for a stay of the injunction pending appeal, stating, “Because the government is unlikely to succeed on the merits of its appeal of the injunction, we deny the motion for stay and the request to narrow the scope of the injunction.”

The policies in question would provide a stay of deportation and work authorization opportunities to an estimated 4.3 million foreign nationals in the U.S. Jackson Lewis P.C. will continue to monitor this case and provide updates.

Temporary Protected Status Granted for Nepal

USCIS has announced that it would grant Temporary Protected Status (TPS) for citizens of Nepal through December 24, 2016. TPS provides relief to individuals whose countries are not safe due to civil unrest, natural disasters, or other temporary, but substantial catastrophes. The 7.8 magnitude earthquake in Nepal on April 25, 2015, devastated the country, leaving many people homeless or without proper services. The continued aftershocks further complicate efforts to rebuild and recover.

To qualify for TPS, an individual must be a citizen of Nepal and be in the U.S. on June 24, 2015, the date of the USCIS announcement. Applications will be accepted from June 24, 2015, through December 24, 2015. TPS and work authorization will be valid through December 24, 2016.

The TPS designation is great news for Nepalese living in the U.S., and for U.S. companies whose Nepalese employees’ H-1B cases were not selected in this year. TPS will provide these employees the opportunity to live and work in the U.S. a little while longer. The attorneys at Jackson Lewis are available to discuss how this can benefit you or your employees.

Delays in Visa Issuance by U.S. State Department

The U.S. State Department has announced that the Bureau of Consular Affairs is experiencing technical problems with its visa systems, causing delays in printing visas and threatening to require rescheduling some visa interviews. The issue is not country-specific and, therefore, has affected visa applicants worldwide. The State Department expects the systems to be fully operational “soon.”

The State Department said a June 9 hardware failure halted the flow of biometric clearance requests to the Consular Consolidated Database (CCD). The legal requirements necessary to screen visa applicants before visas are issued compel it to wait until the problems are resolved before individuals who submitted online applications or were interviewed for visas on or after June 9 will receive their visas, the State Department said.

Meanwhile, the State Department is working to assist visa applicants with urgent humanitarian need for travel and those awaiting overseas adoption related visas.

Guidance to Visa Applicants

Applicants who were interviewed on or after June 9, 2015, expect a delay in visa issuance and a possible delay in travel plans to the U.S. Visa applicants who have been interviewed and are awaiting visa issuance can request that their passport be returned, but they will need to return to the consulate for visa issuance once the technical issue is resolved. If you have been affected by this technical issue and have an urgent need to travel, please contact your Jackson Lewis immigration attorney for assistance.

Our Immigration team will continue to monitor this situation closely and provide additional updates.

Texas Agencies Ordered to E-Verify (state contractors are off-the-hook)

Texas Governor Greg Abbott signed a bill (S.B. 374) into law June 10, 2015, that requires state agencies in Texas to use the E-Verify system to check that new employees are authorized to work in the U.S.

E-Verify, managed by U.S. Citizenship and Immigration Services, compares information filled out by job applicants on an I-9 form with Social Security Administration and Department of Homeland Security records.

S.B. 374 authorizes the Texas Workforce Commission to monitor how the various state agencies sign-up for and implement E-Verify. Critically, the bill does not apply to private companies that contract with state agencies. The law will take effect on Sept. 1.

The bill will ensure that taxpayer-funded state paychecks are issued only to those eligible to work in the U.S., Abbott said in a statement.

“By rightfully prioritizing the needs of our own workforce and certifying employability at public agencies, Texas can — and will — keep Texans working and our economy growing for generations to come,” Abbott said.

Abbott’s predecessor, Governor Rick Perry, and Presidential hopeful, issued an executive order in December mandating the use of E-Verify by state agencies, but it did not have the enforcement mechanism that the Texas Workforce Commission will provide. That order also required state agency contractors to participate in E-Verify, and, like the Executive Order issued by President Bush amending the federal acquisition regulation, would have compelled private contractors to E-Verify their entire workforce. Some agencies in Texas were including Perry’s amended obligations in state contracts issued after January 1, 2015.

H-1B Amendment Required for Change in Place of Employment

U.S. immigration law requires that a U.S. H-1B employer must file an amended H-1B petition if there is a material change in the terms and conditions of the H-1B employment. However, prior USCIS informal opinion letter or guidance provided little guidance on the types of changes that would constitute a material change. In the event of a change of employment location, an informal USCIS opinion letter issued in 2003 in response to a letter seeking clarification stated that if the worksite was changed to a new location not covered in the original H-1B I-129 but is covered by a certified LCA which was in place prior to the employee’s move to the new location, an amended H-1B is not required “as long as the Labor Certification Application (LCA) has been filed and certified for the new employment location, the appropriate worksite posting has taken place, and other wage and hour obligation are met.”

On April 9, 2015, the Administrative Appeals Office (AAO) published a precedent decision in Matter of Simeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015), stating the rule requiring an H-1B employer to file an amended H-1B petition if there is a change in worksite not covered in the original LCA. AAO’s decision held that a change in the beneficiary’s authorized place of employment to a geographical area not covered in the original LCA is a “material change” and the petitioner was required to “immediately notify USCIS and file an amended or new H−1B petition, along with a corresponding LCA certified by DOL.”

It is not yet clear if this holding will be applied retroactively to changes in worksites that took place prior to AAO’s decision. Although retroactivity, if found applicable, may be challenged procedurally under Administrative Procedure Act (“APA”), a more specific USCIS guidance is much needed on the definition of “a material change” and the effective date for the AAO decision .

Lawsuit Filed to Challenge H-4 EAD Rule and DHS’s Authority

With the May 26, 2015 effective date of H-4 spouse work authorization rule (“H-4 EAD Rule”) approaching, a lawsuit has been filed trying to block the implementation of the Rule, which allows spouses of certain H-1B visa holders to apply for work authorization.

On April 23, 2015, Save Jobs USA, a group of former employees of Southern California Edison, brought the suit in D.C. federal district court challenging Department of Homeland Security’s authority to issue the H-4 EAD Rule. Save Jobs USA claims that the rule injures the group members by depriving them of statutory protections from foreign labor, increasing the number of economic competitors, and conferring benefits to their economic competitors on H-1B visas. In its complaint and motion for preliminary injunction, Save Jobs USA also stated that three of its members would have standing to bring the lawsuit on their own as they were all replaced by H-1B workers and remain in competition with H-1B workers, and soon H-4 visa holders, in the job market. As of today, the lawsuit has not changed H-4 EAD Rule’s scheduled effective date. It is very likely that the rule will still go into effect as planned and U.S. Citizenship and Immigration Services (“USCIS”) will begin accepting applications on May 26, 2015. If the court grants a preliminary injunction, however, USCIS will not be able to accept H-4 EAD applications beginning May 26, 2015.

UPDATE:  As of May 22, 2015, no injunction has been issued, and the rule is expected to take effect as planned on May 26, 2015.  USCIS also has published H-4 EAD guidance on its website:

USCIS Suspends Premium Processing for H-1B Extensions

USCIS has announced that it will suspend premium processing for all H-1B extension petitions between May 26, 2015, and July 27, 2015. It will use this time to implement the Employment Authorization for Certain H-4 Spouses and ensure that these applications for work authorization will be adjudicated in a timely manner.

Premium processing allows certain petitions and applications to be expedited. A decision or Request for Evidence (“RFE”) must be issued within 15 calendar days of filing the premium processing request. For this service, USCIS requires a $1,225 filing fee to be included with the petition.

USCIS will continue to process cases filed using premium processing prior to May 26, 2015. If an H-1B extension is filed under premium processing before May 26, 2015, but a decision is not issued within the 15-day period, USCIS will refund the premium processing fee. All other petitions are still eligible for premium processing.