Musillo Unkenholt Law | Healthcare Immigration Blog

July 8, 2015
Uncategorized

EXTENSIONS AND AMENDMENTS ARE ESSENTIALLY NEW PETITIONS

The healthcarestaffing and IT staffing industries have seen a large uptick in H-1B amendmentsbeing generated as a result of the USCIS foolish Simeio Solutions decision. One issue that has come as a surprise to manyclients is that an H-1B amendment is essentially no less work than a new H-1Bcap-subject or H-1B extension petition.

USCIS policy ondeference to prior petitions is explained in a 2004 USCIS Memorandum by WilliamYates. Technically, USCIS officers aresupposed to give deference in extension petitions unless,

(1) it is determined that there was amaterial error with regard to the previous petition approval; (2) a substantialchange in circumstances has taken place; or (3) there is new material informationthat adversely impacts the petitioner’s or beneficiary’s eligibility. Material error, changed circumstances, or newmaterial information must be clearly articulated in the resulting request forevidence or decision denying the benefit sought, as appropriate.

(April23, 2004, Yates Memorandum)

The problem is thatthis section is made toothless by the next paragraph:

[t]his memorandum does not in any wayrestrict or impact an adjudicator’s ability to deny, in the exercise of his orher discretion, the beneficiary’s simultaneous request to extend his or herstay in the United States in the same classification.

As a result, theUSCIS only pays lip-service to deference in amendment and extension petitions. The adjudicating officer will casuallymention one of the three instances and then ask for entirely new information. The officer will usually point to thesentence that the memorandum is not “in any way” meant to restrict the adjudicator’sability to deny a case.

Essentially allH-1B legal points must be re-raised by the employer and will ultimately be re-adjudicatedby the USCIS.

June 30, 2015
Uncategorized

AILA ISSUES COMMENTS ON SIMEIO SOLUTIONS

AILA submitted a 15page comment to the USCIS in response to the USCIS’ request for commentsabout the Simeio Solutions decision. MU Law published oursubmitted comments last week.

The Simeio Solutions decision now requiresall H-1B employers to file an amended H-1B petition each and every time that anH-1B employee moves to a new location requiring an LCA. AILA called into question the AAO’sthrow-away line that the Simeio Solutionsdecision “may be construed as contrary” to prior USCIS interpretation on theissue. AILA cited many instances of USCIShistorical guidance over 20+ years, finding just one time that a USCIS officialhad implied that an amended H-1B was required.

Of equal importance,AILA points out that the USCIS ought not to issue quasi- legislative changes inpolicy and rules via AAO opinion. Thisapproach circumvents the Administrate Procedures Act. It does not give the public a chance tocomment on sweeping measures that impact all users of the program. Finally, AILA points out this new rule raisessubstantial unresolved questions, which is the very reason for offering the publica chance to comment via the proper rule-making process.

June 26, 2015
Uncategorized

MU LAW OFFERS COMMENTS TO USCIS ON SIMEIO SOLUTIONS DECISION

The USCIS’ recent Simeio Solutions decision has caused much angst in the legal community. Many commentators have questions both the USCIS policy goals and the legality of this decision.

Perhaps in response to this feedback, the USCIS offered the public a chance to comment on the decision. MU Law has offered its comments. Our comments centered upon the AAO’s misunderstanding of the materiality standard, which is the center-piece of the AAO decision.

You can read our comments at this link:

MU Law Comment on Simeio Solutions decision

June 19, 2015
Uncategorized

TALE OF A JOURNEY DOCUMENTARY

The European Union recently funded a documentary, Tale of a Journey, which tells the stories of Philippine nurses as they migrate to Europe. Challenges such as missing families, learning new languages, and learning new cultures are explored.

The documentary gives a 360 degree view, as it also tells the stories of nurses who have returned to Philippines after spending sometime in both Europe and America. It also includes interveiws with government officials and recruiters. It is worth a watch for anyone intersted in this topic.

June 15, 2015
Uncategorized

DOL UPDATING PERM

The USDepartment of Labor (DOL) announced on June 2, 2015 that it will begin theprocess of updating the PERM regulations. The PERM regulations govern the labor certification process, the first phaseof most green card cases.

The PERMprocess requires the employer to test the US labor market in an effort toprotect the US labor force. PERM isrequired for Occupational Therapists, Medical Technologists, Physicians, SpeechLanguage Pathologists, and many other occupations. PERM is not required for Registered Nurses orPhysical Therapists, as the DOL has determined that there is a nationalshortage of RNs and PTs in the US and therefore the labor market does not needto be tested.

The DOL hasnot comprehensively examined or modified the PERM process since 2004. Much haschanged in the way employers recruit workers since 2004. The DOL has received ongoing feedback thatthe existing PERM requirements frequently do not align with worker or industryneeds and practices. For instance, the PERM process requires the employer toadvertise in the print newspaper; most workers now use online job searchengines to find open positions.

The DOL isengaging in new rulemaking that will consider options to modernize the PERMprogram to be more responsive to changes in the national workforce, to furtheralign the program design with the objectives of the US immigration system, andto enhance the integrity of the labor certification process.

June 10, 2015
Uncategorized

JULY 2015 VISA BULLETIN

The Department of State has just released the July 2015 Visa Bulletin. This is the tenth Visa Bulletin of the 2015 Fiscal Year.

The retrogression of the Philippines EB-3 continues. To insure that no Philippine EB-3 visas are issued, the Department of State has made the Philippine EB-3 number Unavailable. This means that no Philippine EB-3 visas can be issued this fiscal year. The next fiscal year starts on October 1, 2015.

This cannot be good news, although MU still believes that the dates will progress with the start of FY 2016. Please read our blog post from May 19 for deeper analysis on the state of the Philippine EB-3.

India EB-2 remained at October 1, 2008. India EB-3 only moved up one week to February 1, 2004. All Other EB-3 moved ahead two months to April 15, 2015, which is also the date for Mexico’s EB-3.

China EB-2 improved another five months to October 1, 2013 and EB-3 remained at September 1, 2011.

Employment- Based	All Other	CHINA – mainland born	INDIA	MEXICO	PHILIPPINES
1st	C	C	C	C	C
2nd	C	01OCT13	1OCT08	C	C
3rd	15APR15	01SEP11	01FEB04	01APR15	–U–

June 3, 2015
Uncategorized

WHAT OTHER REASONS REQUIRE AN H-1B AMENDMENT?

Much has been discussed about the recent case Matter of Simeio Solutions where theAdministrative Appeals Office (AAO) indicated an H-1B amendment is requiredwhen an employee changes worksites from one metropolitan area to another. There are, however, other situations which requirethe filing of an H-1B amendment.

USCIS regulations indicate that an employer must file an amendedpetition to reflect any “material changes” in the terms and conditions ofemployment or training. While not filing an amendedpetition can subject both the employer and employee to penalties and liabilities,neither the USCIS or the DOL have defined “materialchange.“

Changes in employment which mayrequire an amended H-1B petition include:

Change from full-time to part-timeemployment or vice versa
Reduction in wages, particularlywhen it affects the prevailing wage
Change of more than 50% in jobduties, for instance, Occupational Therapist to Director of Rehabilitation

Insignificant alterations in jobduties and normal incremental changes in the upward direction do not require anH-1B amendment. An H-1B amendment is notrequired for:

Promotion when job duties aremostly the same, for instance, Physical Therapist to Senior Physical Therapist
Regular merit-based or cost ofliving pay increases
Moving to a new office in the samemetropolitan area
Short-term placement at a new worklocation for less than 30 days per year
Non-worksite locations, forinstance when an H-1B worker attends an professional conference
Change in the employer’s name whennone of the terms and conditions of employment change

When an H-1B employee’s employmentchanges, please contact ouroffice. Together, MU Law and theemployer should decide if the change is material and if an H-1B amendment isrequired.

June 1, 2015
Uncategorized

USCIS SUED OVER INTERIM EADs

Bylaw the USCIS must either adjudicate EAD applications within 90 days or issueinterim employment authorization. OnFriday May 26, 2015, anationwide class action lawsuit was filed against the USCIS for unlawfullydelaying the adjudication of applications for Employment AuthorizationDocuments (EADs). The lawsuit allegesthat USCIS’s failed to timely adjudicate applications for EADs and to issueinterim employment authorization, in violation of USCIS law.

Variousclasses of individuals may qualify for an EAD, including: individuals with apending I-485 (green card) application, students on OPT, and L-2, J-2, and H-4spouses. While the USCIS has not indicated as such, the volume ofEAD applications being received may be causing delays. Due to the recent retrogression of thePhilippines EB3 category and the new H4 EAD rule, the USCIS has certainly beenreceiving a large number of EAD applications.

It is important to note that unlike an H-1B extension,which if filed before the H expiration extends the work authorization while theextension case is pending, an application for an EAD extension must be approvedbefore the current EAD expires to avoid a gap in work authorization. Individuals applying to extend their EADsshould apply a minimum of 90 days before the expiration of the EAD card. Individuals must have a valid EAD in hand tobe authorized to work in the US.

May 27, 2015
Uncategorized

ALTERNATIVE VISA OPTIONS TO THE H-1B PROGRAM, PART ONE: F-1

U.S. Citizenship andImmigration Services (USCIS) recently announced it received approximately233,000 H-1B petitions for the 2016 H-1B CAP filing. This figure includes bothregular H-1B cap-subject petitions and H-1B petitions filed for the advanceddegree exemption. Not surprisingly, this is the largest number of H-1B cap-subject petitionsever received. From a numbers standpoint, we can expect about 36% of the H-1Bswill be accepted and 64% will be returned.

Since more than half of the petitions are returned, U.S. employers must seekalternative visa options to the H-1B program. In this three–partseries blog post, we will discuss in detail the available alternatives. Each of these visas has specific legal requirementsthat the employer and employee must meet to qualify. The options discussedshould be considered on a case by case basis, to determine the best fit for theemployer and employee.

In the first blog of thisthree-part series, we discuss the options available to F-1 student visa holdersincluding continued employment under STEM OPT or returning to pursue a higherdegree.

Optional Practical Training (OPT) including STEM OPT

OptionalPractical Training (OPT) is temporary employment that is directly related to anF-1 student’s major area of study. Under the current rules, an F-1 student canbe authorized to receive up to a total of 12 months of practical trainingeither before (pre-) and/or after (post-) completion of studies. Certainscience, technology, engineering and mathematics (STEM) degree holders may beeligible for an additional one time 17 month extension of OPT time. To beeligible for the STEM OPT, the attained degree must be one of the STEMDesignated Degree Programs (see STEM Designated Degree Programs) to determine if thedegree is eligible and the employer must be registered with the government’s”E-Verify” Program.

Higher Degree Level

An F-1 student can enroll in a new,higher degree-seeking program at a SEVIS certified university. Note thatstudents may be authorized up to a total of 12 months of full-time practicaltraining at each educational level (e.g., undergraduate, graduate andpost-graduate). The student can also be authorized for Curricular PracticalTraining (CPT) at each new degree level. The CPT option should be exercisedwith caution and discussed by the student with the university’s designatedschool official. In a more recent trend, MU noticed the USCIS narrowly focus on F-1 students and whether thestudent maintained status during period(s) of authorized employment such asCPT.

In the second blog of thisthree-part series, we will discuss the H-1B CAP exemption options includingquota requirements, who qualifies and how some states have designed innovateideas to take advantage of this option.

May 22, 2015
Uncategorized

H-1B AMENDMENT NEEDED FOR ALL GEOGRAPHICAL CHANGES, EVEN IF BEFORE APRIL 9, 2015

The USCIS has just released Guidanceon its webpage further clarifying the SimeioSolutions case from April 2015.

The most impactful part of the Guidanceis that the USCIS is now requiring all H-1B employers to file an H-1B amendmentfor employees who have moved their geographical location, even if that move happened before April 9, 2015, the date of the Simeio Solutions decision.

SimeioSolutions holds that a new H-1B petition is required whenever an H-1Bworker changes his geographical location, if that geographical change requiresa new Labor Condition Application (LCA). Typically geographical changes outside of a metropolitan statistical arearequire a new LCA.

The USCIS previously implied that only relocations happening after the issuance of the April 0, 2015 Simeio Solutions decision. This new interpretation reaches back in time, requiringall prior geographical moves to file amended H-1Bs.

Accordingly all MU Law clients areencouraged to fully review their H-1B roster and confirm that the H-1B employee’scurrent worksite matches the worksite listed on the employee’s I-129petition. If the H-1B employee’s currentworksite does not match the worksite listed on the employee’s I-129 petition,then we should prepare and file an amended H-1B petition.

Thankfully, the Guidance is givingall H-1B employers a 90 day grace period, until August 19, 2015, to comply withthis latest Guidance interpretation.

The new USCIS Guidance also confirmsexisting safe harbors within the law. Anamended H-1B does not have to be filed when:

-The geographical move is within thesame metropolitan statistical area.

-Under certaincircumstances, you may place an H-1B employee at a new job location for up to30 days, and in some cases 60 days (where the employee is still based at theoriginal location), without obtaining a new LCA.

-The job is“peripatetic in nature,” such as situations where their primary job is at onelocation but they occasionally travel for short periods to other locations “ona casual, short-term basis, which can be recurring but not excessive.

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