Uncategorized Archives | Page 56 of 107

August 11, 2015
Uncategorized

DOL EXPECTS TO REDUCE PERM AUDIT TIMES

Registered Nurses and PhysicalTherapists are exempt from the Department of Labor PERM Application processbecause they are Schedule A occupations. This is a great relief because it saves considerable time. Other healthcare occupations, notably Occupational Therapist and SpeechLanguage Pathologists,must still avail themselves of the PERM process.

PERM Applications usually takeseveral months to prepare because before a PERM Application can be filed, theemployer must test the labor market with a variety of advertisements that maybe placed in newspapers, on the internet, and via hard copy Noticeposting.

After the labor market test iscomplete, the PERM Application is electronically filed with the Department ofLabor. The electronic filing sets theApplication’s “priority date”. The DOLelectronically reviews the Application. The DOL presently is reviewing PERM Applications that have December2014 prioritydates.

A percentage of PERM Applicationsare selected for auditing. The auditselection process is generally random, although some factors can increase anApplications chance of being selected. The biggest downside of the Audit is the processing time.

The DOL is presently reviewing PERMApplications with a priority date of March 2014, which is about one and a halfyears from the date of the initial filing of the PERM Application. If one assumes about 6 months for thepre-filing labor market test, then the total processing time for the PERM processis almost two years.

Fortunately the DOL appears to beaware of the backlogs. At a recent meeting between AILA and the Office ofForeign Labor Certification, the OFLC said that it expects to see a“considerable reduction” in the audit processing queue.

August 3, 2015
Uncategorized

NVC ERRONEOUSLY TERMINATING IMMIGRANT VISA APPLICATIONS

TheNational Visa Center has been issuing erroneous letters indicating thatimmigrant visa applications will be terminated because neither the applicantsnor their attorneys have contacted the NVC within one year of notification ofthe availability of a visa. Theseletters are often erroneous because applicants and their attorneys havecontacted the NVC during the prior one year. It appears that the emailed letters were sent by the NVC during the lastweek of July 2015. The NVC is aware oftheir mistake and is taking steps to correct the erroneous letters. A similar issue arose in November 2014.

Ifyou have received one of these emails, MU Law advises you to contact the NVC tomake sure that they do not close your immigrant visa application.

TheNVC has the right to ordinarily close applications under INA §203(g) forfailure to contact the NVC within one year of notification of the availabilityof a visa.

July 28, 2015
Uncategorized

GREEN CARD SIGNATURES UNNECESSARY

Green Cards (also known asPermanent Resident Cards) do not always include the Permanent Resident’ssignature on the face of the card. Beginning in February 2015, the USCIS began waiving the signaturerequirement for individuals who filed for their Green Card from abroad throughthe Embassy or Consulate in the home country. The USCIS may waive the signature requirement in other limited circumstances,such as for children under the age of 18 or individuals physically unable toprovide a signature.

When the Green Card is issuedwithout a signature, the card will say “Signature Waived” on the front and backof the card where a signature would normally be located.

Green Cards identify the holder asa Lawful Permanent Resident of the United States and are proof of identity andwork authorization. Green Cards whichsay “signature waived” are valid for I-9 purposes, as long as the Green Card isunexpired.

July 23, 2015
Uncategorized

USCIS ISSUES FINAL GUIDANCE ON AMENDED H-1B PETITIONS AFTER SIMEIO SOLUTIONS

The USCIS has again revised its interpretation of the opinion that it issued in the controversial Simeio Solutions decision. The revised Final Guidance says that the Simeio Solutions decision will not be applied retroactively, which is a significant change from the USCIS’ May 26, 2015 Guidance. The revised Final Guidance now says that these actions must be taken:

Date of H-1B employee’s move	Action
On or before April 9, 2015	No amended H-1B is needed.
April 9 – August 19, 2015	Amended H-1B must be filed before Jan. 15, 2016.
After August 19, 2015	Must file an amended H-1B once LCA is certified.

H-1B employers should note that generally an H-1B employer has 30 days from the date of the move to file the amended H-1B. Accordingly, we advise that MU Law is informed of the move immediately, so that we can prepare the LCA and the amended H-1B filing.

The revised Final Guidance reconfirmed that an amended H-1B petition is NOT required if the geographical move is within an “area of intended employment.” An “area of intended employment” is generally the same as a Metropolitan Statistical Area. Likewise, an amended H-1B petition is NOT required if the H-1B employee is attending training sessions, seminars, conferences, etc. of a short duration.

The revised Final Guidance also confirms that if an employer’s amended 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.

July 20, 2015
Uncategorized

DOS: EB-3s MAY MOVE AHEAD “A FEW MONTHS” IN SEPTEMBER

AILA’s“Check In with Charlie” is a monthly discussion with the Department of State’s officerwho sets the monthly Visa Bulletin. Thismonth’s Check In revealed that Charlie thinks that EB-3 China, EB-3 India andEB-3 Philippines all have the potential to move forward a few months inSeptember. Whether or not the dates movewill depend on demand for EB-3 Worldwide through early August.

Charliealso predicts EB-3 Worldwide and EB-3 Mexico will continue to advance inSeptember. He expects that thesecategories dates may hold steady starting in October for a month or two. This will allow the DOS to see if greater demandfrom the recent advancement of the cut-off date results in these categories.

Indiaand China EB-2 is expected to remain unchanged for the next month.

July 13, 2015
Uncategorized

USCIS AGAIN ACCEPTING H-1B EXTENSION PREMIUM PROCESSING

Effective immediately the USCISis again accepting H-1B premium processing extensions petitions, ending aseven week suspension of the program.

In May, the USCISsuspended premium processing for all H-1B extension petitions. The suspension was because the USCIS fearedthat the volume of H-1B extension petitions would surge due to the newH-4 EAD rule.

Rumors persisted that the USCISmight end the suspension earlier than the previously announced July 27reenactment date. USCIS closely monitoredthe demand for the H-4 EADs and are confident that the implementation of theH-4 EAD program has worked well. Accordingly, the suspension of the H-1B extension premium processingprogram is over.

July 10, 2015
Uncategorized

AUGUST 2015 VISA BULLETIN

The Department ofState has just released the August 2015 Visa Bulletin. This is the eleventh Visa Bulletin of the 2015 FiscalYear.

The bizarreretrogression of the Philippines EB-3 continues. Although the JulyVisa Bulletin showed that Philippine EB-3 was unavailable, this monthshows a date: June 1, 2004. This means that there are afew available visas for this fiscal year. Please read our blogpost from May 19 for deeper analysis on the state of the PhilippineEB-3.

All Other EB-3is essentially current, with a date of July 15, 2015. This isgreat news for all EB-3s, other than Philippine, China, and India.

IndiaEB-2 remained at October 1, 2008. On the other hand, India EB-3leapt ahead. It is now at June 2004.

China EB-2 improvedanother two and a half months to December 15, 2013 and EB-3 remained atSeptember 1, 2011. The story was much different for China EB-3, whichretrogressed back to 2004. Just a few months ago, China EB-3had actually progressed further than EB-2. There is now anearly ten year gap between these two categories.

Employment- Based	All Other	CHINA – mainland born	INDIA	MEXICO	PHILIPPINES
1st	C	C	C	C	C
2nd	C	15DEC13	1OCT08	C	C
3rd	15JUL15	01JUN04	01JUN04	15JUL15	01JUN2004

The Visa Bulletin also included this notice:

D. CHINA-MAINLAND BORN EMPLOYMENT THIRD, AND THIRD OTHER WORKER VISA AVAILABILITYThere was an extremely large increase in applicant demand reported for consideration in the determination of the August cut-off dates. Therefore, it has been necessary to retrogress the Employment Third, and Third Other Worker cut-off dates to hold number use within the FY-2015 annual limit.Every effort will be made to return those categories to the previously announced July cut-off dates as quickly as possible under the FY-2016 annual limits. Those limits will take effect October 1, 2015.

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

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