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U.S. Citizenship and Immigration Services has released final guidance clarifying the manner in which the Administrative Appeals Office precedent decision Matter of Simeio Solutions will be implemented.
The final guidance states that as of today, July 21, if an employer’s H-1B employee moved to a new area of employment on or before April 9, 2015, the date of the decision, USCIS will generally not pursue new adverse actions (i.e., denying or revoking a petition) solely based on the employer’s failure to file a new or amended H-1B petition. However, any adverse actions taken or commenced by USCIS prior to July 21 will remain in effect. Employers may choose to file new or amended petitions for work location changes that took place on or before April 9, so long as they file by Jan. 15, 2016. USCIS will consider such petitions timely filed.
For location changes that occurred after April 9 but before Aug. 19, the guidance clarifies that employers are required to file new or amended H-1B petitions by Jan. 15, 2016. If an employer fails to file a new or amended petition by this deadline, both the employer and the H-1B employee will be out of compliance and subject to adverse action.
For changes that occur after Aug. 19, employers must file an amended or new petition before an H-1B employee may begin working at a new place of employment that is not covered by an existing, approved H-1B petition.
USCIS had previously issued draft guidance in May, stating that the decision would apply to location changes that took place prior to the Simeio Solutions decision and requiring employers to file new or amended petitions to reflect those changes by Aug. 19. USCIS invited stakeholders to comment on the draft guidance.
The final guidance released today also confirms that if an employer’s amended or new H-1B petition is denied, but the original petition remains valid, the H-1B employee may return to work at the place of employment covered by the original petition if he or she is able to maintain valid nonimmigrant status there. Additionally, an employer may file another amended H-1B petition while an amended H-1B petition is pending, so long as every amended petition meets the requirements for H-1B classification and any requests for extensions of stay. If the H-1B employee’s status expires while successive amended petitions are pending, the denial of any petition or request to amend or extend status will result in the denial of all successive requests to amend or extend status.
BAL Analysis: This final guidance is welcome news for companies. However, USCIS has not eliminated an adjudicator’s ability to take adverse actions based on an employer’s failure to file a new or amended petition for worksite changes that took place prior to the Simeio Solutions decision. Please consult with your BAL professionals for advice on these issues.
Copyright © 2016 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.
Employers checking I-9 documents of employees should be aware that U.S. Citizenship and Immigration Services has been issuing green cards without the holder’s signature that normally appears on the cards.
Since February, the agency has issued green cards without signatures to lawful permanent residents entering the U.S. for the first time after obtaining their visas abroad from a U.S. consular post. The signature requirement has also been waived for minors and individuals who are physically unable to provide a signature.
The cards say “Signature Waived” on the front and back of the card where a signature would normally appear and are an acceptable form of identification for I-9 employment eligibility as long as they are unexpired, appear to be genuine and relate to the person presenting them.
The United States and Cuba opened embassies in Havana and Washington Monday, marking the return of formal diplomatic relations between the two countries for the first time in more than 54 years.
The opening of the embassies follows months of talks between the two countries. President Barack Obama announced July 1 that embassies would reopen this month.
While diplomatic relations have been restored, general tourism and most forms of trade with Cuba are still not allowed. The Obama administration did take steps in January, however, to loosen certain travel restraints and broaden permissible activities.
BAL Analysis: Those planning travel to Cuba or intending to conduct business in Cuba should make sure their planned activities are legal. Contact a BAL attorney if you have any questions about which activities are permissible.
U.S. Citizenship and Immigration Services announced Tuesday that it has finished processing the returns of H-1B cap-subject petitions that were not selected in this year’s computer-generated lottery. It may still take a week or longer, however, before all returned petitions are actually received.
USCIS received nearly 233,000 H-1B cap-subject petitions during this year’s filing period, which began April 1. Congressional quotas for H-1B visas are set at 65,000 for undergraduate-degree holders plus an additional 20,000 for foreign nationals with a master’s degree or higher from a U.S. university.
USCIS completed the lottery in April and subsequently began returning petitions that were not selected.
BAL Analysis: While USCIS has completed processing the returns of petitions that were not selected, it will take time before all returned petitions are received. BAL continues working with employers on possible alternative visa options for foreign workers who were not selected in the H-1B lottery.
The White House today released a 48-page report, Modernizing and Streamlining Our Legal Immigration System for the 21st Century, along with an accompanying fact sheet. The report, announced in a blog post titled “Bringing Our Immigration System into the Digital Age,” contains recommendations from the White House to the federal agencies to implement the memorandum issued by President Obama in November 2014.
Key recommendations for the business community include:
The report also lays out a plan to improve the overall immigration application and adjudication process by shifting from the current paper-based system to a digital system, as well as recommending improvements to certain categories of humanitarian relief.
BAL continues to evaluate the report and analyze its potential implications for the business community.
IMPACT – HIGH
What is the change? The Indian Consulate in San Francisco has imposed extensive new requirements on U.S. travelers applying for business visas.
What does the change mean? Affected travelers are now required to provide six months of personal bank statements, hotel and flight itineraries, and an additional letter of support from their U.S. employer. The letter of support must state the precise nature of the traveler’s activities in India and list the name and company address of the individual who signed the required letter of invitation.
Background: Over the course of the past week, the Indian Consulate in San Francisco began requiring new document requirements for travelers seeking business visas. BAL will follow whether the requirements will be implemented at other consulates in the U.S.
A statement posted to the website of the Indian Consulate in San Francisco on July 9 does not provide a reason for the recent changes, but does say that the Indian Embassy and consulates “reserve the right to seek additional documentation at their discretion” from visa applicants. The statement also warns travelers not to book travel arrangements without first obtaining the relevant visa for their travel.
BAL Analysis: BAL has only seen the new requirements implemented in San Francisco thus far, but business travelers should consider preparing the additional documentation no matter which consulate they are using when applying for a business visa. While the additional requirements add to the time required to apply for a visa, delays resulting from a lack of proper documentation could be significant.
Employers should also be aware that while electronic tourist visas (formerly called visas on arrival) are available for very limited business activities, the safest route for travelers seeking to enter the country for business activities is to obtain a multi-year business visa before entering India.
This alert has been provided by the BAL Global Practice group. For additional information, please contact your BAL representative.
U.S. Citizenship and Immigration Services has resumed premium processing of H-1B extension-of-stay petitions today, after suspending the service for more than one month.
Employers may now request premium processing of petitions to extend the stay of H-1B employees. Premium processing requests received before today will be rejected. In addition, USCIS cautioned that it will only accept the new version of Form I-907 Request for Premium Processing and will reject older versions of the form.
The agency temporarily stopped accepting requests for the expedited processing of H-1B extension petitions so that it could adjudicate the expected influx of applications under the new H-4 employment authorization rule, which took effect May 26. Service is resuming earlier than expected; USCIS originally announced that it planned to suspend the service from May 26 to July 27, but has decided it is now able to handle the requests.
BAL Analysis: Employers may contact their BAL attorney to file requests for premium processing for affected H-1B extension petitions or to upgrade existing H-1B extension petitions to premium processing that were filed during the temporary suspension of service.
The priority date for Chinese nationals in the EB-3 category will retrogress more than seven years from Sept. 1, 2011 to June 1, 2004, according to the State Department’s August Visa Bulletin. The adjustment was necessary because of an “extremely large increase in applicant demand” and to keep numbers within the annual limits. A rollback of this category was predicted in February as the anticipated result of large numbers of Chinese nationals downgrading from the slower-advancing EB-2 category. In August, EB-2 China will advance by more than two months from Oct. 1, 2013 to Dec. 15, 2013.
For Indian nationals, EB-3 will advance by four months from Feb. 1, 2004 to June 1, 2004, but EB-2 will remain unchanged from last month’s priority date of Oct. 1, 2008.
In other EB-3 categories, Mexico and Rest of World will advance by more than three months from April 1, 2015 to July 15, 2015. The Philippines EB-3 category, which was unavailable this month, will resume in August with a priority date of June 1, 2004.
In the EB-2 category, nationals of Mexico, the Philippines and Rest of World will remain current. All EB-1 categories will remain current.
Summary of August 2015 Visa Bulletin:
The U.S. and Cuba will reopen embassies in Havana and Washington later this month, President Barack Obama announced Wednesday.
The move follows months of diplomacy after Obama’s announcement in December that the U.S. would work to normalize relations with Cuba.
“This is a historic step forward in our efforts to normalize relations with the Cuban government and people, and begin a new chapter with our neighbors in the Americas,” Obama said in remarks from the White House Rose Garden.
The U.S. closed its embassy and cut relations with Cuba more than 54 years ago. While reopening the embassy would indeed be a historic development, most forms of trade and general tourism remain off-limits with Cuba.
The Obama administration did take steps in January to loosen travel restraints and broaden permissible business activities for specific groups of people. Nevertheless, anyone planning travel to Cuba should be extremely careful to ensure that they are within the bounds of the law.
Obama framed future relations with Cuba as “a choice between the future and the past” and called on Congress to take steps toward lifting a trade embargo on Cuba that “prevents Americans from traveling or doing business in Cuba.”
BAL Analysis: While the announcement is a signal of dramatically improved relations between the U.S. and Cuba, those in the U.S. considering traveling to Cuba or doing business there must ensure that their activities are legal. Contact a BAL attorney if you have any questions about which activities are permissible.
The State Department said Thursday that a backlog of visa applications facing U.S. embassies and consulates around the world should be cleared within a week.
Embassies and consulates were rendered unable to issue visas for almost two weeks this month after a computer glitch crippled biometric data processing, making it impossible to run security checks.
The State Department said Thursday that 165 U.S. diplomatic posts were back online. Those posts handle more than 85 percent of U.S. nonimmigrant visa demand worldwide, according to government figures.
“Many posts are working overtime this week and during the upcoming weekend, and we expect to eliminate the backlog in a week or less,” the State Department said.
Officials said that overseas embassies and consulates issued 82,000 visas Wednesday and more than 238,000 this week. That compares to the roughly 540,000 visas that would have normally been issued since the time the outage struck on June 9.
Embassies and consulates are once again scheduling interviews, and those in need of an interview should check with the appropriate embassy or consulate for appointment availability. For the latest information on the situation, visit the State Department’s U.S. Passports & International Travel website.
BAL Analysis: News that the visa backlog should be cleared soon and that more diplomatic posts are online is welcome. Travelers are nonetheless urged to submit applications for travel documents as early as possible and prepare for possible delays until the problem is fully resolved.