2 June 2015
Category News Room
2 June 2015,
 0

The world of immigration law continues to heat up, and although we have no recent legislative changes (unfortunately still no allowance for additional H-1B quotas), new guidance and court battles continue to make headlines.  These are some of the more important issues we are following for our clients:

New Guidance on H-1B related to change of employment location

USCIS’ Administrative Appeal Office (AAO) recently issued a precedent decision, Matter of Simeio Solutions, LLC, which provides more definitive guidance as to when an employer must file an H-1B amendment petition.  Previously, there were a number of views and approaches to which immigration law practitioners subscribed in determining when an amendment was necessary.  Following the Simeio decision, it is now mandatory to file an amended petition if there is a change in worksite location which places the H-1B beneficiary outside of the metropolitan statistical area (MSA) or an “area of intended employment” (which is defined as the area within normal commuting distance of the of the place of employment) covered by the existing approved H-1B petition.

Additional information can be found at http://www.uscis.gov/news/alerts/uscis-draft-guidance-when-file-amended-h-1b-petition-after-simeio-solutions-decision.  We will separately reach out to our HR contacts regarding the implementation of this important change; to ensure compliance the government has mandated employers have until August 19, 2015 to file H-1B amendments to comply with this new official agency guidance or face possible H-1B sanctions.

 

Premium Processing for Non-immigrant Cases Suspended for Extension filings

As of May 26, 2015, USCIS has suspended premium processing for all H-1B Extension petitions until July 27, 2015.  The suspension only affects H-1B Extensions filed with premium processing on or after May 26, 2015—H-1B Extensions filed with premium processing prior to this date will still receive premium processing service.  Additionally, the suspension does not affect other kind of Form I-129 H-1B Petitions, such as consular notification, amendment, or change of status cases.  USCIS provided limited notification of this change and it can have far-reaching implications on how to handle certain non-immigrant filings as we have confirmed that it applies to extension filings even in new employment situations.  In cases where an employee wishes to utilize premium processing we will need to be very strategic in our approach to the application and we wish to forewarn clients of the need for flexibility during this period.

The original USCIS announcement can be found at the following webpage: http://www.uscis.gov/archive/archive-news/uscis-temporarily-suspends-premium-processing-extension-stay-h-1b-petitions

 

President’s Executive Action to create DAPA and expand DACA remains on hold

On May 26, the Fifth Circuit Court of Appeals decided not to reverse a Texas federal district court’s preliminary injunction blocking certain provisions in President Obama’s November Executive Action on Immigration.  These provisions would have expanded DACA to reach more individuals without status who came to the U.S. before the age of 16 as well as implement DAPA for the first time, which would apply to many individuals living in the U.S. without status whose children are either U.S. citizens or permanent residents.  The decision to not lift the preliminary injunction was no surprise.  A final judgement on the legality of the Executive Action on Immigration is far from being made – the Fifth Circuit will hear oral arguments on whether to reverse or block the relevant provisions on July 10th in New Orleans.

 

In a related bit of good news – on May 28, the Nebraska Unicameral voted 34-10 to override Governor Pete Ricketts’s veto of a bill (LB 623) to allow issuance of driver’s licenses to those who have received DACA.   Nebraska was the last of 50 states to allow for issuance of driver’s licenses to DACA holders.  This was an issue supported by a broad community of agricultural, business, community, and faith based leaders and it was wonderful to see this change happen and the positive impact it brings to the lives of DACA holders in the state.

 

** 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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