5 October 2015
Category News Room
5 October 2015,

This past summer has been an usually busy time in regulatory guidance and policy shifts related to immigration.  We want to pass along several important updates that impact most of our clients 1) H-1B compliance when there is a change in worksite location; 2) The new August 17th L-1B Policy Memo; 3) STEM OPT EAD Extensions; and 4) AOS processing under the new Visa Bulletin procedure.  Two of these issues relate to last November’s Presidential directives related to reforming the immigration system

H-1B Compliance When There is a Change in Worksite Location

As mentioned in prior communications, the Administrative Appeals Office (AAO), a part of USCIS, changed the requirements for when an H-1B amendment must be filed following a change in work location through its ruling in Matter of Simeio Solutions, LLC (Simeio). In response to the Simeio decision, USCIS recently published guidance clarifying how the ruling will be interpreted.  This guidance confirms when employers must file an amendment of an existing H-1B and also provides a cut-off date after which this memo takes affect for future moves.  Although the Simeio decision was effective when it was handed down, USCIS recognized that delaying its implementation would provide appropriate time for employers to comply with the new rules, while also avoiding inundating USCIS with a flood of amendments.  In short, if an employer previously managed a move of an H-1B worker to a new location by filing and posting a new LCA, those compliance steps will be viewed as sufficient for current compliance, but after April 9, 2015 if an employee on an H-1B changes work location then an amended H-1B must be filed (and prior to the move if the move happens after August 19th) in the event the move exceeds the MSA (area in which the LCA wage is based) or regular commuting distance.

Example 1: Employee moves to a different office in the same MSA or within commuting distance of the old office

For example, the employee was working in an office in San Jose, but the office has since moved to Santa Clara. In this case, as the new office is in the same Metropolitan Statistical Area (MSA) and also within regular commuting distance, the original LCA filed for the employee still covers the new office and there is no need to file a new LCA or amended H-1B petition. The employer would simply repost the original LCA at the new workplace for 10 business days to be compliant with Simeio.

Example 2: Employee moved to a different office BEFORE April 9, 2015

Employee moved to a new office outside the original MSA, but the move happened prior to the Simeio decision. In this case, USCIS does not require the employer file a new LCA and H-1B amendment, provided the employer otherwise complied with prior guidance and posted new qualifying LCAs at the new work site. USCIS in its memo does maintain a right to hold employers responsible for not having filed an H-1B amendment after moving location, but this mention appears to be more of a warning to employers who do not attempt to comply with LCA wage requirements – in other words, USCIS is leaving itself the option of going after employers it feels may have flaunted the rules previously.  Employers who did not attempt to comply with prior moves by filing new LCAs for the new jurisdiction should amend the existing H-1B to avoid potential negative consequences.

Example 3: Employee moves to a different office AFTER April 9, 2015 but BEFORE August 19, 2015

Employer must file a new LCA and amended H-1B petition if the employee moves to a new office outside the original MSA or regular commuting distance. Any amended H-1Bs filed for moves during this period will be considered as compliant even if the employee began working at the new office before the amended H-1B was filed. Failure to file an amended H-1B by January 15, 2016 deadline will result in an employer violating the rules for an H-1B worker and the H-1B employee will no longer be maintaining proper H-1B status, which can have serious negative impacts for both employer and employee.

Example 4: Employee moves to a different office AFTER August 19, 2015

Employer must file a new LCA and amended H-1B petition before the employee can begin working at any new office when a new LCA is required (move out of MSA or outside of regular commuting distance). The amended H-1B petition does not have to be approved before the employee can transfer, but employer must have proof USCIS received the petition for the employee to start working at the new location, or the employee and employer are not in compliance.

In the coming days, we will reach out to separately to all HR where action is required to maintain compliance with the Simeio decision, if we have not already. We ask that you notify your attorney/paralegal at least three weeks prior to any move, even is the move is local. This will allow sufficient time to prepare any amendments and maintain compliance.  If we otherwise hear about a move just prior to the transition, the move will need to be delayed in order to maintain compliance.


New L-1B Policy Memo

On August 17th, USCIS issued their final policy update regarding all L-1B application sent through the service centers. The memo went into effect on August 31st for any newly filed or currently pending L-1B cases. This was a part of President Obama’s Executive Orders issued last November and key to ensuring this category is available to U.S. employers.  Until this memo was issued and in effect the L-1B category was under siege by USCIS adjudicators – it was extremely difficult to gain an approval of such filings and adjudicators did their best to dismiss qualifying evidence of specialized knowledge that had previously been accepted as relevant evidence.  Many employers encountered situations where earlier USCIS had approved an L-1B transfer only to deny the extension filing, which obviously defies logic, makes this process increasingly frustrating to employers and attorneys alike, and underscores why this guidance was so important.  The new guidance cancels and replaces all prior guidance and returns sanity to adjudicative decision-making in this area.  It is sufficiently broad in its interpretation that noted immigration opponent Senator Chuck Grassley has testified that it will open up the L-1B category to too many people.  From our perspective, Senator Grassley’s opposition is a good sign that the memo is appropriately drafted.  To date, we have had success with L-1Bs submitted to the service center since the new memo went into effect and are cautiously optimistic that USCIS understands the importance and content of the memo.  We will continue to monitor its implementation and advise clients accordingly on the ability to file with USCIS on any specific case.


STEM OPT EAD Extensions

In August, a District Judge ruled that the federal government failed to provide proper notice in 2008 when it implemented the 17 month STEM OPT extension regulations. The Judge, recognizing that immediate action would be incredibly detrimental to U.S. employers and current STEM OPT EAD holders, stayed the decision until February 12, 2016 to allow the federal government to correct the issue by providing proper notification. To date, the federal government has not acted, but a group called the Washington Alliance of Technology Workers filed an appeal that is current pending in the District Court. On October 2, 2016 DHS issued a brief note confirming they are working on draft regulation to meet the Judge’s deadline, but they did not release specific details of what the draft will look like.  We are hopeful that the federal government will act on time as failure to do so would seriously hamper U.S. employers’ ability to continue the employment of foreign students who did not get into the H-1B lottery.  Failing to act timely would require all STEM OPT EAD extension holders to cease work as of February 12, 2016. We are monitoring this situation and will provide updates as they become available. Please let us know if you have any employees in jeopardy or are thinking of hiring an OPT employee who is on a STEM extension, or will need one granted in the near future.


AOS Processing and the New Visa Bulletin

On September 9th, the Department of State issued a Visa Bulletin with the first ever two chart system.  The first chart (for family or employment based filings) indicates the actual priority dates showing availability for an immigrant visa, whereas the new second chart provides a later date on which applicants can base their decision to file their AOS.  In other words, the new Visa Bulletin allows foreign nationals to file their AOS applications earlier than their actual priority date would allow (per chart one). This was part of President Obama’s Executive Action calling on the Department of State and USCIS to better streamline the priority date process.  The September 9th Bulletin was greeted with much excitement and applicants proceeded to get ready to file pursuant to the chart two dates.  However, on September 25th, the Department of State revised the October Visa Bulletin and significantly rolled back the dates in the original chart two, making the majority of employees who appeared eligible to file based on the September 9th Bulletin now ineligible to file.  This announcement was made only three business days prior to these applicants being eligible to file.

Unsurprisingly all the goodwill felt by the new two chart system has been replaced with anger over the “bait and switch” that DOS and USCIS have pulled on immigrants by reversing the dates.  Many individuals have spent considerable amounts of money on medical reports, photos, and legal fees to prepare their filings, only to be told they can no longer file.  There is currently a class-action lawsuit against the Department of State and USCIS seeking an injunction and reinstatement of the September 9th Visa Bulletin. There is also pressure from multiple immigration groups, including AILA in response to this move. A similar issue occurred in 2007 and DOS ultimately capitulated and returned to the original Visa Bulletin.  This is the obvious hope of immigrants supporting the current class action.

As an important clarification, while we could not file as planned for October 1, 2015, we do anticipate the employees impacted by the roll back will be able to file soon.  Remember that immigration medicals are valid for up to a year prior to filing and then for a year after the filing, we expect that clients who received immigration medicals will not have to repeat them prior to filing their AOS process.  We will keep all clients impacted by this reversal updated as more information is made available, especially in the event DOS returns to the September 9th Visa Bulletin cut off dates.

**This newsletter/memo is provided for informational and discussion purposes only.  It does not act as a substitute for direct legal contact on an individual basis.**

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