Immigration Law Update June 2015

June 2015

Garfinkel Immigration Law Firm is Growing

Garfinkel Immigration Law Firm Adds Support Staff

Garfinkel Immigration Law Firm is growing and adding resources and services to best accommodate and assist our clients. The Firm has hired:

Yan Zhao, a Paralegal and native Chinese speaker who is proficient in German;

Laura J. Young, a Paralegal, fluent in Spanish;

Morgan R. Yaguda, a Paralegal, fluent in Spanish; and

Elizabeth R. Beaumont, a Receptionist/Front Desk Coordinator, fluent in Spanish.

Please join us in welcoming them to the Firm.



USCIS Suspends Premium Processing Until July 27 for Extension of Stay H-1B Petitions; New Form In Effect

U.S. Citizenship and Immigration Services (USCIS) has suspended premium processing for all H-1B extension of stay petitions until July 27, 2015. During this time frame, petitioners will not be able to file Form I-907, Request for Premium Processing Service, for a Form I-129, Petition for a Nonimmigrant Worker, requesting an extension of stay for an H-1B nonimmigrant.

Also, USCIS has implemented a new version of the I-907 (edition date: 01/29/2015) and will no longer accept previous versions as of June 1, 2015. USCIS issued the new version on May 1 and continued to accept old versions during the transition period, which ended May 31.

USCIS said the temporary suspension will allow the agency to implement its final rule on employment authorization for certain H-4 spouses in a timely manner and to adjudicate applications for employment authorization filed by H-4 nonimmigrants under the new regulations. USCIS said it anticipates receiving an "extremely high volume" of Form I-765 applications and needs to temporarily suspend premium processing "to ensure that we can provide good customer service to both H-1B petitioners and H-4 applicants."

The agency said it will monitor its workloads closely and "may resume accepting premium processing requests before July 27, 2015, if we determine that we can once again provide customers with the level of service offered with premium processing."

During the temporary suspension, USCIS will refund the premium processing fee if:


* A petitioner filed an H-1B petition before May 26, 2015, using the premium processing service, and


* USCIS did not act on the case within the 15-calendar-day period.

Premium processing remains available for all other I-129 H-1B petitions, including petitions subject to the H-1B cap that are requesting a change of nonimmigrant status or consular notification.

USCIS noted that petitioners may request expedited processing for their H-1B extension of stay petitions during the temporary suspension period. The agency said it will "review all expedite requests on a case-by-case basis and grant the requests at the discretion of the Director. The burden is on the petitioner to demonstrate that one or more of the expedite criteria have been met."

Information on how to request expedited processing is available here. The announcement is available here. The final rule noted above is available here. The new I-907 can be found here.



USCIS Releases Revised I-765 Application for Employment Authorization

U.S. Citizenship and Immigration Services (USCIS) recently published a revised Form I-765, Application for Employment Authorization, with an 02/13/15 edition date.

The revised I-765 contains the eligibility category (c)(26) for certain H-4 dependent spouses to apply for employment authorization. Those filing under the new H-4 rule should provide the receipt number of the H-1B principal spouse's most recent Form I-797 Notice of Approval for Form I-129.

While USCIS will continue to accept versions of the form with edition date 05/27/08 or later, H-4 applicants should use the 02/13/15 version of the form to prevent delays or the need for USCIS to issue a request for evidence.

The announcement is available here. For more information about the H-4 rule and eligibility for employment authorization under the rule, click here. A related list of frequently asked questions is available here.



When Should Employers File Amended H-1B Petitions After Simeio? USCIS Issues Draft Guidance

U.S. Citizenship and Immigration Services (USCIS) recently issued draft guidance following its Administrative Appeals Office (AAO) precedent decision, Matter of Simeio Solutions, LLC, which held that an employer must file an amended 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 worksite location. Specifically, the decision stated:

1. When H-1B employees change their place of employment to a worksite location that requires an employer to certify a new LCA to the Department of Homeland Security, this change may affect the employees' eligibility for H-1B status; it is therefore a material change for purposes of 8 CFR §§ 214.2(h)(2)(i)(E) and (11)(i)(A) (2014).

2. 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.

USCIS noted that this precedent decision represents the agency's position that employers must file an amended petition before placing an H-1B employee at a new worksite. USCIS said it will accept comments on the draft guidance for a limited period of time.

When To File or Not File

Employers must file an amended H-1B petition if an H-1B employee changed or is going to change his or her place of employment to a worksite location outside of the metropolitan statistical area (MSA) or "area of intended employment" (as defined at 20 CFR § 655.715) covered by the existing approved H-1B petition, even if a new LCA is already certified and posted at the new location.

Once the employer files the amended petition, the H-1B employee can immediately begin to work at the new location. The employer does not have to wait for a final decision on the amended petition for the H-1B employee to start work at the new location.

USCIS said employers do not need to file an amended petition in the following situations:

* A move within an MSA: If the H-1B employee is moving to a new job location within the same MSA or area of intended employment, a new LCA is not required. Therefore, the employer does not need to file an amended H-1B petition. However, the employer must still post the original LCA in the new work location within the same MSA or area of intended employment. For example, an H-1B employee moving to a new job location within the New York City MSA (NYC) would not trigger the need for a new LCA, but the employer would still need to post the previously obtained LCA at the new work location. USCIS said this is required regardless of whether an entire office moved from one location to another within NYC or if just one H-1B employee moves from one client site to another within NYC.

* Short-term placements: Under certain circumstances, the employer may place an H-1B employee at a new job location for up to 30 days, and in some cases 60 days (where the employee is still based at the original location), without obtaining a new LCA. (See 20 CFR § 655.735.) In these situations, the employer does not need to file an amended H-1B petition.

* Non-worksite locations: If the H-1B employee is only going to a non-worksite location, the employer does not need to file an amended H-1B petition. A location is considered to be "non-worksite" if:

  • The H-1B employees are going to a location to participate in employee developmental activity, such as management conferences and staff seminars;
  • The H-1B employees spend little time at any one location; or

•The job is "peripatetic in nature," such as situations where the primary job is at one location but the H-1B employees occasionally travel for short periods to other locations "on a casual, short-term basis, which can be recurring but not excessive (i.e., not exceeding five consecutive workdays for any one visit by a peripatetic worker, or 10 consecutive workdays for any one visit by a worker who spends most work time at one location and travels occasionally to other locations)." See 20 CFR § 655.715.

Filing Amended H-1B Petitions

* If the H-1B employees were changing worksite locations at the time of the Simeio Solutions decision, the employer has 90 days from May 21, 2015, to file amended petitions for H-1B employees who changed their place of employment to an MSA or area of intended employment requiring coverage by a new or different LCA from that submitted with the original H-1B petition. Therefore, if the employer has not filed an amended petition for an H-1B worker who moved worksite locations before May 21, 2015, it has until August 19, 2015, to file an amended petition.

* If the H-1B workers changed their worksite location before the Simeio Solutions decision, USCIS said it will not take adverse action against the employer or employees if the employer, in good faith, relied on prior non-binding agency correspondence and did not file an amended petition due to a change in an MSA or area of intended employment by May 21, 2015. However, as noted above, the employer must now file an amended petition for these H-1B employees by August 19, 2015. If the employer does not file an amended petition for these employees by August 19, 2015, it will be out of compliance with USCIS regulation and policy and thus subject to adverse action, USCIS said. Similarly, the H-1B employees would not be maintaining their nonimmigrant status and would also be subject to adverse action.

* If the amended H-1B petition is denied but the original petition is still valid, the H-1B employee may return to the worksite covered by the original petition as long as the H-1B employee is able to maintain valid nonimmigrant status at the original worksite.

* If the previously filed amended H-1B petition is still pending, the employer may still file another amended petition to allow the H-1B employee to change worksite locations immediately upon the latest filing. However, every H-1B amended petition must separately meet the requirements for H-1B classification and any requests for extension of stay. If the H-1B nonimmigrant beneficiary's status has expired 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. See Memorandum from Michael Aytes, Acting Director of Domestic Operations (Dec. 27, 2005), for similar instructions about portability petitions (link below).

USCIS noted that to the extent possible, the employer should submit receipt notices of prior petitions. USCIS will determine, on a case-by-case basis, whether a petition was filed before the current I-94 expired.

The 2005 Aytes memorandum discussed above is available here. The draft guidance is available here. Matter of Simeio Solutions, LLC, can be found here.



USCIS To Hold EB-5 Conference Call on June 4

U.S. Citizenship and Immigration Services (USCIS) will hold a second engagement (conference call) in EB-5the informational series "EB-5 Interactive" on Thursday, June 4, 2015, from 1 to 2:15 p.m. (ET). The topic of discussion will be expenses that are includable (or excludable) for purposes of estimating job creation. Economists from the Immigrant Investor Program will make a short presentation and answer non-case-specific stakeholder questions concerning this topic.

For more information click here.



Fifth Circuit Denies Emergency Stay of Preliminary Injunction Against DAPA and Expanded DACA

On May 26, 2015, the U.S. Court of Appeals for the Fifth Circuit denied the Obama administration's request for an emergency stay of a preliminary injunction against its Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program and expanded Deferred Action for Childhood Arrivals (DACA) program. In denying the request, the Fifth Circuit said that the government "is unlikely to succeed on the merits of its appeal of the injunction."

The district court previously determined that 26 states who challenged the DAPA and expanded DACA programs were likely to succeed on their procedural Administrative Procedure Act (APA) claim, so it temporarily enjoined implementation of the programs. Among other things, those states argued that the DAPA and expanded DACA programs are procedurally unlawful under the APA because they are substantive rules that are required to undergo notice and comment but the Department of Homeland Security (DHS) had failed to do so. The states also asserted that DAPA and expanded DACA were substantively unlawful under the APA because DHS lacked the authority to implement the programs even if it did follow the correct process.

Among other things, the district court had held that Texas had standing because it would be required to issue driver's licenses to DAPA and expanded DACA beneficiaries, and the costs of doing so would constitute a cognizable injury. Alternatively, the court held that Texas had standing based on a theory it called "abdication standing," under which a state has standing if the government has exclusive authority over a particular policy area but declines to act. The court entered the preliminary injunction after concluding that Texas had shown a substantial likelihood of success on its claim that implementation of the DAPA and expanded DACA programs would violate the APA's notice-and-comment requirements. The Fifth Circuit said it reached only the district court's first basis for standing-the driver's license rationale-"because it is dispositive."

The Fifth Circuit noted that the government's motion for a stay pending appeal was based on its insistence that the states do not have standing or a right to judicial review under the APA and, alternatively, that the DAPA and the expanded DACA programs are exempt from the notice-and-comment requirements. The government also argued that the injunction's nationwide scope was an abuse of discretion. The Fifth Circuit did not agree.

The Fifth Circuit will consider the government's appeal of the preliminary injunction, with arguments scheduled for early July.

The Fifth Circuit's opinion is available here.



USCIS Completes Data Entry of All FY 2016 H-1B Cap-Subject Petitions

U.S. Citizenship and Immigration Services (USCIS) announced on May 4, 2015, that it has completed data entry of all fiscal year 2016 H-1B cap-subject petitions selected in a computer-generated random process. USCIS will begin returning all H-1B cap-subject petitions that were not selected. The agency noted that due to the high volume of filings, the time frame for returning these petitions is uncertain, so USCIS would prefer not to receive queries in the meantime. USCIS will issue an announcement once all the unselected petitions have been returned.

For more information click here.

DOL, DHS Publish Rules on H-2B Temporary Nonagricultural Worker Program, Related Prevailing Wage Methodology

In response to recent court decisions that the U.S. Departments of Labor and Homeland Security say have created significant uncertainty about the H-2B temporary foreign nonagricultural worker program, the agencies published an interim final rule on April 29, 2015, to reinstate and make improvements to the program, and a final rule the same day to establish the prevailing wage methodology.

The agencies said that these rules "strengthen protections for U.S. workers, providing that they have a fair shot at finding and applying for jobs for which employers are seeking H-2B workers, while also providing that employers can access foreign workers on a temporary basis when U.S. workers are not available." The rules include several provisions to expand recruitment of U.S. workers, including more recruitment efforts, requiring employers to offer work to former U.S. employees first, and establishing a national electronic job registry. They include worker protections with respect to wages, working conditions, and benefits that must be offered to H-2B and U.S. workers. They also establish the prevailing wage methodology for the H-2B program, reinstating the use of employer-provided surveys to set the prevailing wage in certain limited situations.

The agencies said they intend these rules to support U.S. businesses and the U.S. economy "by expeditiously reinstating the H-2B program and bringing certainty, stability, and continuity to the program in reaction to litigation on multiple fronts that has threatened to terminate employers' ability to use H-2B workers." The new rules also provide interim transition procedures.

The announcement is available here. The interim final rule is available here and the final rule can be found here.



DHS Issues Final Rule Adjusting Limitations on Designated School Official Assignments and Study by F-2 and M-2 Nonimmigrants

The Department of Homeland Security (DHS) is amending its regulations under the Student and Exchange Visitor Program (SEVP) "to improve management of international student programs and increase opportunities for study by spouses and children of nonimmigrant students." The final rule "grants school officials more flexibility in determining the number of designated school officials to nominate for the oversight of campuses." The rule also "provides greater incentive for international students to study in the United States" by allowing accompanying spouses and children of F-1 or M-1 academic and vocational nonimmigrant students to enroll in study at a SEVP-certified school so long as any study remains less than a full course. F-2 and M-2 spouses and children remain prohibited from engaging in a full course of study unless they apply for, and DHS approves, a change of status to a nonimmigrant status authorizing such study.

DHS charges designated school officials (DSOs) with the responsibility of acting as liaisons between nonimmigrant students, the schools that employ the DSOs, and the U.S. government. Among other things, DSOs are responsible for making information and documents relating to F-1 and M-1 nonimmigrant students, including academic transcripts, available to DHS.

Since the Student and Exchange Visitor Information System (SEVIS) is now fully operational and appropriate access controls are in place, DHS has reconsidered the DSO limitation, and, with this rule, eliminates the maximum limit of DSOs. The rule instead allows school officials to nominate an appropriate number of DSOs for SEVP approval based upon the specific needs of each school.

DHS explained that although the average SEVP-certified school has fewer than three DSOs, F and M students often cluster at schools within states that attract a large percentage of nonimmigrant students. As such, schools in the three states with the greatest F and M student enrollment represent 35 percent of the overall F and M nonimmigrant enrollment in the United States. In schools where F and M students are heavily concentrated or where campuses are in dispersed geographic locations, the limit of 10 DSOs has been problematic.

The rule does not alter SEVP's authority to approve or reject a DSO or principal designated school official (PDSO) nomination.

The rule also amends the benefits allowable for the accompanying spouse and children (hereafter referred to as F-2 or M-2 nonimmigrants) of an F-1 or M-1 student. DHS said it recognizes that the United States is engaged in global competition to attract the best and brightest international students to study in U.S. schools. Allowing F-2 or M-2 nonimmigrants to study while in the United States would help enhance the quality of life for many of these visiting families. Accordingly, DHS is allowing F-2 and M-2 nonimmigrant spouses and children to study in the United States at SEVP-certified schools that does not amount to a full course of study. Over time such enrollment in less than a full course of study could lead to attainment of a degree, certificate, or other credential. To maintain valid F-2 or M-2 status, however, the F-2 or M-2 nonimmigrant would not be permitted at any time to enroll in a total number of credit hours that would amount to a "full course of study," as defined by regulation.

The newly permissible area of part-time study for these categories at SEVP-certified schools is academic study-whereas before only part-time recreational/vocational study was permitted for these categories (other than the exception for K-12 full-time study by F-2 and M-2 children). The change limits F-2 and M-2 study, other than avocational or recreational study, to SEVP-certified schools, to make it more likely that the educational program pursued by the F-2 or M-2 nonimmigrant is a bona fide program and that studies at the school are unlikely to raise national security concerns. The F-2 or M-2 nonimmigrants can still participate full-time in avocational or recreational study. If an F-2 or M-2 nonimmigrant wants to enroll in a full course of academic study, however, he or she must apply for and obtain approval to change his or her nonimmigrant classification to F-1, J-1, or M-1. Similarly, as noted, the rule does not change existing regulations allowing full-time study by children in elementary or secondary school (kindergarten through twelfth grade).

The final rule is available here.



USCIS Announces Immigration Relief Measures for Nepali Nationals

U.S. Citizenship and Immigration Services (USCIS) announced the following immigration relief measures that may be available to Nepali nationals who are affected by the magnitude 7.8 earthquake that struck Nepal on April 25, 2015:

* Change or extension of nonimmigrant status for an individual currently in the United States, even if the request is filed after the authorized period of admission has expired;

* A grant of re-parole;

* Expedited processing of advance parole requests;

* Expedited adjudication and approval, where possible, of requests for off-campus employment authorization for F-1 students experiencing severe economic hardship;

* Expedited adjudication of employment authorization applications, where appropriate;

* Consideration for waivers of fees associated with USCIS benefit applications, based on an inability to pay; and

* Assistance in replacing lost or damaged immigration or travel documents issued by USCIS, such as Permanent Resident Cards (green cards).

Meanwhile, the National Council of Asian Pacific Americans, along with 127 organizations, sent Jeh Johnson, Department of Homeland Security Secretary, a letter on May 5, 2015, calling for temporary protected status designation for Nepal due to the earthquake.

The USCIS announcement is available here. The text of the sign-on letter is available here.



USCIS Alerts Yemenis to Available Immigration Relief Measures

Due to the unstable security situation in Yemen, U.S. Citizenship and Immigration Services (USCIS) recently highlighted available immigration relief measures that may assist eligible Yemeni nationals:

* Change or extension of nonimmigrant status for an individual currently in the United States, even if the request is filed after the authorized period of admission has expired;

* A grant of re-parole;

* Expedited adjudication and approval, where possible, of requests for off-campus employment authorization for F-1 students experiencing severe economic hardship;

* Expedited adjudication of employment authorization applications, where appropriate; and

* Consideration for waiver of fees associated with USCIS benefit applications, based on an inability to pay.

The announcement is available here.



It's Not Your Imagination: U.S. Mail Delivery Is Slower Than Before

According to reports, approximately 20 to 50 percent of U.S. mail now takes an extra day to deliver, thanks in part to the U.S. Postal Service's eliminating first-class local overnight delivery starting in January and closing many mail processing plants in response to decreased demand. This slowdown is affecting delivery of immigration-related documents, such as approval notices, among others.

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