1. USCIS Reaches H-1B Cap for FY 2016; Premium Processing Starts Soon -USCIS received almost 233,000 H-1B petitions in the first week of April.
2. Senators Seek Multi-Agency H-1B Program Investigation -The senators expressed concerns about U.S. workers being displaced by H-1B workers following allegations that Southern California Edison replaced approximately 400 information technology workers with H-1B workers.
3. Senate Committee Holds Hearing on H-1B Program and Skilled U.S. Worker Displacement -The Senate Judiciary Committee held a hearing on March 17, 2015, “Immigration Reforms Needed to Protect Skilled American Workers.”
4. USCIS Reaches H-2B Temporary Nonagricultural Worker Cap for FY 2015 -March 26, 2015, was the final receipt date for new cap-subject H-2B worker petitions requesting an employment start date before October 1, 2015.
5. AAO Decides Two Cases—Definition of ‘Doing Business’ and Material Change in Place of Employment -The AAO recently decided two cases of interest.
6. AAO Seeks Friend-of-Court Briefs on Legal Rights of I-140 Beneficiaries in Adjudications and Appeals -AAO is seeking amicus curiae (friend of the court) briefs from stakeholders concerning whether beneficiaries of certain immigrant visa petitions have a legal right to participate in the adjudication process, including appealing to the AAO.
7. New Publications and Items of Interest -New Publications and Items of Interest
8. ABIL Member/Firm News -ABIL Member/Firm News
9. Government Agency Links -Government Agency Links
U.S. Citizenship and Immigration Services (USCIS) announced on April 7, 2015, that it had reached the congressionally mandated H-1B nonimmigrant visa cap of 65,000 for fiscal year (FY) 2016. USCIS also received more than the limit of 20,000 H-1B petitions filed under the U.S. advanced-degree exemption. USCIS announced on April 13, 2015, that nearly 233,000 employers filed H-1B petitions in the first week of April. This means that employers have about a 30% chance of winning the H-1B lottery this year.
U.S. businesses use the H-1B program to employ foreign workers in occupations that require at least a bachelor’s degree or equivalent.
Process for FY 2016. USCIS said that it will use a computer-generated “lottery” to randomly select the petitions needed to meet the caps. Before running the lottery, USCIS will complete initial intake for all filings received during the filing period. Due to the high number of petitions, USCIS is not yet able to announce the date on which it will conduct the random selection process. USCIS said it will first randomly select petitions for the advanced degree exemption. All unselected advanced degree petitions will become part of the random selection process for the 65,000 general limit. The agency will reject and return filing fees for all unselected cap-subject petitions that are not duplicate filings.
USCIS will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed on behalf of current H-1B workers who have been counted previously against the cap, and who still retain their cap number, will also not be counted toward the FY 2016 H-1B cap. USCIS will continue to accept and process petitions filed to:
- Extend the amount of time a current H-1B worker may remain in the United States;
- Change the terms of employment for current H-1B workers;
- Allow current H-1B workers to change employers; and
- Allow current H-1B workers to work concurrently in a second H-1B position. U.S. businesses use the H-1B program to employ foreign workers in occupations that require highly specialized knowledge in fields such as science, engineering, and computer programming.
Premium processing. USCIS also announced that it will begin premium processing for cap-subject H-1B petitions by May 11, 2015. USCIS provides premium processing service for certain employment-based petitions and guarantees a 15-calendar-day processing time.
For H-1B petitions not subject to the cap and for any other visa classification, the 15-day processing period for premium processing service begins on the date USCIS receives the request. However, for cap-subject H-1B petitions, including advanced degree exemption petitions, the 15-day processing period will begin on May 11, 2015, regardless of the date on the I-797 receipt notice, which indicates the date on which the premium processing fee was received.
USCIS ANNOUNCEMENT about the H-1B cap being reached is available
USCIS ANNOUNCEMENT about premium processing
A group of senators sent a letter on April 9, 2015, to Attorney General Eric Holder, Homeland Security Secretary Jeh Johnson, and Labor Secretary Thomas Perez seeking an investigation of the H-1B program. The group, led by Sens. Richard Durbin (D-Ill.) and Jeff Sessions (R-Ala.), expressed concerns about U.S. workers being displaced by H-1B workers following allegations that Southern California Edison replaced approximately 400 information technology workers with H-1B workers.
The letter asks:
In many cases it appears that the H-1B workers are not employees of the U.S. company laying off American workers, but instead are contractors employed by foreign-owned IT consulting companies. This increasingly popular business practice by U.S. companies and foreign-owned IT outsourcing firms raises several questions. For example, have the U.S. companies that have laid off American workers and replaced them with H-1B workers and/or the IT consulting contractors the companies retained engaged in prohibited citizenship status discrimination against U.S. citizens? Did the Labor Condition Applications certified by the Department of Labor’s Employment and Training Administration and the petitions approved by U.S. Citizenship and Immigration Services for each H-1B visa holder who replaced a U.S. worker at these companies accurately reflect the scope and location of their work? Did such labor condition applications or visa petitions show any evidence of misrepresentation or fraud by the employer-petitioners? Did the employer-petitioners maintain a true employer-employee relationship with the H-1B workers after they were placed at the U.S. client company? While media reports indicate that the H-1B visa program is the principal visa program at issue in the layoffs, were other visa programs, such as the L-1B or the B-1, also used to displace American workers at U.S. companies?
The Senate Judiciary Committee held a hearing on March 17, 2015, entitled “Immigration Reforms Needed to Protect Skilled American Workers.” The hearing focused on the effects of the H-1B visa program and other temporary worker programs on skilled U.S. workers. Sen. Charles Grassley (R-Iowa), chairman of the committee, charged that the H-1B program is “highly susceptible to fraud and abuse.” He noted that he and Sen. Dick Durbin (D-Ill.) have introduced legislation to require, among other things, employers seeking to hire an H-1B worker to first make a good faith effort to recruit a U.S. worker.
Sen. Patrick Leahy (D-Vt.) also released a statement. He noted the “meaningful contribution that immigrant workers make to the U.S. economy, and the ways in which a healthy immigration system can grow the country’s economic base and create jobs that benefit all Americans.” He said that hearing witness Bjorn Billhardt came to the United States as a high school exchange student, later earned degrees from the University of Texas and Harvard Business School, and subsequently stayed in the United States to start a successful education business that now employs over 40 people. “Mr. Billhardt’s experience illustrates the value of an immigration system that welcomes diverse backgrounds and keeps promising graduates of our universities here in the United States, where they can contribute to our culture and our economy,” Sen. Leahy said.
Witnesses at the hearing included Richard Trumka, President, AFL-CIO; Prof. Ron Hira, Howard University; Bjorn Billhardt, Founder and President, Enspire; Jay Palmer, an American worker from Alabama; Benjamin E. Johnson, Executive Director, American Immigration Council; John Miano, Washington Alliance of Technology Workers; and Prof. Hal Salzman, E.J. Bloustein School of Planning and Public Policy, J.J. Heldrich Center for Workforce Development, Rutgers University.
U.S. Citizenship and Immigration Services (USCIS) announced on April 2, 2015, that it had reached the congressionally mandated H-2B temporary nonagricultural worker cap of 66,000 visas for fiscal year (FY) 2015. March 26, 2015, was the final receipt date for new cap-subject H-2B worker petitions requesting an employment start date before October 1, 2015.
USCIS noted that employers may file petitions up to 120 days before the employment start date. USCIS therefore will reject new H-2B petitions filed more than 120 days before the employment start date.
USCIS will continue to accept H-2B petitions that are exempt from the congressionally mandated cap. This includes petitions filed on behalf of the following beneficiaries:
- H-2B workers in the United States or abroad who have been previously counted toward the cap in the same fiscal year;
- Current H-2B workers seeking an extension of stay;
- Current H-2B workers seeking a change of employer or terms of employment;
- Fish roe processors, fish roe technicians and/or supervisors of fish roe processing; and
- H-2B workers performing labor or services from November 28, 2009, until December 31, 2019, in the Commonwealth of the Northern Mariana Islands and/or Guam.
U.S. Citizenship and Immigration Services’ (USCIS) Administrative Appeals Office (AAO) recently decided two cases of interest.
- In Matter of Leaching International, Inc., 26 I&N Dec. 532 (AAO 2015), in which the petitioner’s appeal was sustained, the AAO noted that the petitioner is a U.S. subsidiary of a Chinese clothing manufacturing company that filed an Immigrant Petition for Alien Worker (Form I-140) to classify the beneficiary as a multinational manager or executive. The petitioner sought to employ the beneficiary in the position of deputy general manager. The Texas USCIS Service Center Director denied the petition, finding that the petitioner failed to establish that it had been doing business for at least one year as of the date the petition was filed.
Established in New York in 2008, the petitioner imports and sells the Chinese parent company’s products to United States customers, primarily major clothing retailers. The petitioner directly performed these sales activities through 2011. However, beginning on or about January 2012, it provided marketing, sales, and shipping services in the United States pursuant to a service agreement with its Hong Kong affiliate, which previously employed the beneficiary and was owned by the Chinese parent company.
The Service Center Director concluded that the petitioner was not doing business as required by the regulations, reasoning that the petitioner’s evidence “do[es] not indicate ‘doing business’ with independent corporations or entities” for a full year preceding the filing of the petition, but rather “only demonstrate[s] the shipment of goods from the foreign company to the U.S. company.” Specifically, the Director found that the petitioner, as a clothing importer, should have provided invoices or evidence of payment of invoices from the customers who purchased the clothing for the year preceding the filing of the petition.
On appeal, the petitioner asserted that the Director erred and that existing case law and regulatory history supported a conclusion that the petitioner is doing business in a regular, systematic, and continuous fashion despite the fact that it is not a named party to contracts with buyers in the United States. The petitioner states that the evidence establishes it acts as an intermediary between its Hong Kong affiliate and the U.S. buyers and suppliers by locating customers and finalizing the details of sales contracts for the benefit of the affiliate.
The AAO noted that the Director’s finding that the petitioner did not submit evidence of doing business with “independent corporations or entities” implies a requirement that a petitioner must transact directly with an unaffiliated third party. In sustaining the petitioner’s appeal, the AAO noted, however, that:
(1) The definition of “doing business” at 8 CFR § 204.5(j)(2) (2014) contains no requirement that a petitioner for a multinational manager or executive must provide goods and or services to an unaffiliated third party; and
(2) A petitioner may establish that it is “doing business” by demonstrating that it is providing goods and/or services in a regular, systematic, and continuous manner to related companies within its multinational organization.
- In Matter of Simeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015), the AAO affirmed the Service Center Director’s decision to revoke an petition’s approval. Among other things, the Director had concluded that changes in the beneficiary’s places of employment constituted a material change to the terms and conditions of employment as specified in the original petition. The changes included different metropolitan statistical areas from the original place of employment, which USCIS agents were unable to find. The Director held that the petitioner therefore should have filed an amended Form I-129 H-1B petition corresponding to a new labor condition application (LCA) that reflected these changes, but the petitioner failed to do so.
In affirming the Director’s decision, the AAO held:
(1) A change in the place of employment of a beneficiary to a geographical area requiring a corresponding LCA be certified to USCIS with respect to that beneficiary may affect 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.
The AAO noted that petitioners must immediately notify USCIS of any changes in the terms and conditions of employment of a beneficiary that may affect eligibility for H-1B status. Matter of Simeio Solutions, LLC
Commentary. In the past, employers relied on informal guidance indicating that as long as a new LCA was obtained before placing an H-1B worker at a new worksite, an amended H-1B petition was not required. See Letter from Efren Hernandez III, Dir., Bus. And Trade Branch, USCIS, to Lynn Shotwell, Am. Council on int’l Pers., Inc. (October 23, 2003). The AAO now has explicitly stated in Simeio Solutions that the Hernandez guidance has been superseded. Even before the guidance was formally superseded, employers were filing amended H-1B petitions, as consular officers were recommending to USCIS that the H-1B petition be revoked if a new LCA was obtained without an amendment of the H-1B petition. According to the AAO, “[i]f an employer does not submit the LCA to USCIS in support of a new or amended H-1B petition, the process is incomplete and the LCA is not certified to the Secretary of Homeland Security.” The AAO cited INA § 101(a)(15)(H)(i)(b), 8 CFR § 214.2(h)(4)(i)B)(1), and 20 CFR § 655.700(b) to support its position, but none of these provisions seems to suggest that an LCA obtained after an H-1B petition has already been submitted is not valid if it is “not certified to the Secretary of Homeland Security.” The Department of Labor (DOL) certifies the LCA. There is no separate process where the DOL also has to certify the LCA to the Secretary of Homeland Security.
It is not so much the cost that troubles employers with respect to filing an amended H-1B petition. The USCIS has made it extremely onerous for employers to obtain H-1B petitions especially when an H-1B worker will be assigned to third party client sites. This is a legitimate business model that American companies across the board rely on to meet their IT needs, but USCIS is now requiring an onerous demonstration that the petitioning company will still have a right to control the H-1B worker’s employment. Each time the employer files an amendment, USCIS will again make the employer demonstrate the employer-employee relationship through the issuance of a request for evidence (RFE). The employer will thus risk a denial upon seeking an amendment, even though it received an H-1B approval initially on virtually the same facts.
H-1B workers in other industries such as healthcare also get reassigned to different locations, such as physicians, nurses, and physical therapists. They too will be burdened by the need to file amended H-1B petitions each time they move to a new work location.
Arguably, if an H-1B worker is being moved to a new job location within the same area of intended employment, a new LCA is not required, nor will an H-1B amendment be required. The original LCA should still be posted in the new work location within the same area of intended employment.
20 CFR § 655.17 defines “area of intended employment”:
Area of intended employment means the area within normal commuting distance of the place (address) of employment where the H-1B nonimmigrant is or will be employed. There is no rigid measure of distance which constitutes a normal commuting distance or normal commuting area, because there may be widely varying factual circumstances among different areas (e.g., normal commuting distances might be 20, 30, or 50 miles). If the place of employment is within a Metropolitan Statistical Area (MSA) or a Primary Metropolitan Statistical Area (PMSA), any place within the MSA or PMSA is deemed to be within normal commuting distance of the place of employment; however, all locations within a Consolidated Metropolitan Statistical Area (CMSA) will not automatically be deemed to be within normal commuting distance. The borders of MSAs and PMSAs are not controlling with regard to the identification of the normal commuting area; a location outside of an MSA or PMSA (or a CMSA) may be within normal commuting distance of a location that is inside (e.g., near the border of) the MSA or PMSA (or CMSA).
So a move to a new job location within New York City (NYC) would not trigger a new LCA, although the previously obtained LCA would need to be posted at the new work location. This could happen if an entire office moved from one location to another within NYC, or even if the H-1B worker moved from one client site to another within NYC.
The DOL Wage and Hour Division Fact Sheet # 62J also confirms this:
If the employer requires the H-1B worker to move from one worksite to another worksite within a geographic area of intended employment, must the employer obtain an LCA for each worksite within that area of intended employment?
No. The employer need not obtain a new LCA for another worksite within the geographic area of intended employment where the employer already has an existing LCA for that area. However, while the prevailing wage on the existing LCA applies to any worksite within the geographic area of intended employment, the notice to workers must be posted at each individual worksite, and the strike/lockout prohibition also applies to each individual worksite.
The AAO decision in Simeio Solutions further overregulates the H-1B visa. This in turn will deprive U.S. companies of an efficient business model that has provided reliability to companies in the United States and throughout the industrialized world to obtain top talent quickly with flexibility and at affordable prices and scale that benefit consumers and promote diversity of product development. This is what the oft-criticized “job shop” readily provides. By making possible a source of expertise that can be modified and redirected in response to changing demand, uncertain budgets, shifting corporate priorities, and unpredictable fluctuations in the business cycle itself, the pejorative “job shop” is, in reality, the engine of technological ingenuity on which progress in the global information age largely depends. Such a business model is also consistent with free trade, which the United States promotes to other countries but seems to restrict when applied to service industries located in countries such as India that desire to do business in the United States through their skilled personnel.
The Hernandez guidance provided flexibility to employers whose H-1B workers frequently moved among client locations, while ensuring the integrity of the H-1B visa program. Employers were still required to obtain new LCAs based on the prevailing wage in the new area of employment, and also notify U.S. workers. However, they were not required to file onerous
H-1B amendments each time there was a move, and risk further arbitrary and capricious scrutiny. The AAO has removed this flexibility, and has further regulated the H-1B to such an extent that the LCA must now always firmly and securely tether an H-1B worker through an amended petition just like a dog to his leash.
6. AAO Seeks Friend-of-Court Briefs on Legal Rights of I-140 Beneficiaries in Adjudications and Appeals
U.S. Citizenship and Immigration Services’ Administrative Appeals Office (AAO) is seeking amicus curiae (friend of the court) briefs from stakeholders concerning whether beneficiaries of certain immigrant visa petitions have a legal right to participate in the adjudication process, including appealing to the AAO (and if so, when, and under what circumstances). Specifically, the AAO seeks briefs on how this issue applies to beneficiaries of Form I-140, Immigrant Petition for Alien Worker, and the effect, if any, of the American Competitiveness in the Twenty-First Century Act on denied or revoked I-140 petitions.
The deadline for the AAO to receive briefs is May 22, 2015.
AAO’S REQUEST, which includes additional details.
Webinar on E-Verify. USCIS will present a webinar, “E-Verify for Executives,” on April 29, 2015, at 2 p.m. ET. The webinar will clarify common misconceptions, discuss the facts and the benefits of using E-Verify, explain employer responsibilities and the enrollment process, and demonstrate the latest enhancements.
The latest edition of the Global Business Immigration Practice Guide has been released by LexisNexis. Dozens of members of the Alliance of Business Immigration Lawyers (ABIL) co-authored and edited the guide, which is a one-stop resource for dealing with questions related to business immigration issues in immigration hotspots around the world.
The latest edition adds a chapter on Singapore. Other chapters cover Australia, Belgium, Brazil, Canada, China, Costa Rica, the European Union, France, Germany, Hong Kong, India, Ireland, Israel, Italy, Japan, Mexico, the Netherlands, Nigeria, Russia, South Africa, Spain, Switzerland, Turkey, the United Kingdom, and the United States.
Latchi Delchev, a global mobility and immigration specialist for Boeing, called the guide “first-rate” and said the key strong point of the book is its “outstanding usability.” She said she highly recommends the book and notes that it “is helpful even to seasoned professionals, as it provides a level of detail which is not easily gained from daily case management.”
Mireya Serra-Janer, head of European immigration for a multinational IT company, says she particularly likes “the fact that the [guide] focuses not just on each country’s immigration law itself but also addresses related matters such as tax and social security issues.” She noted that the India chapter “is particularly good. The immigration regulations in India have always been hard to understand. Having a clear explanation of the rules there helps us sort out many mobility challenges.”
Charles Gould, Director-General of the International Co-operative Alliance, said the guide is “an invaluable resource for both legal practitioners and business professionals. The country-specific chapters are comprehensive and answer the vast majority of questions that arise in immigration practice. Its clear and easy-to-follow structure and format make it the one volume to keep close at hand.”
This comprehensive guide is designed for:
- Human resources professionals and in-house attorneys who need to instruct, understand, and liaise with immigration lawyers licensed in other countries;
- Business immigration attorneys who regularly work with multinational corporations and their employees and HR professionals; and
- Attorneys interested in expanding their practice to include global business immigration services.
This publication provides:
- An overview of the immigration law requirements and procedures for over 20 countries;
- Practical information and tips for obtaining visas, work permits, resident status, naturalization, and other nonimmigrant and immigrant pathways to conducting business, investing, and working in those countries;
- A general overview of the appropriate options for a particular employee; and
- Information on how an employee can obtain and maintain authorization to work in a target country.
Each chapter follows a similar format, making it easy to compare practices and procedures from country to country. Useful links to additional resources and forms are included. Collected in this Practice Guide, the expertise of ABIL’s attorney members across the globe will serve as an ideal starting point in your research into global business immigration issues.
The list price is $299, but discounts are available. Contact your Lexis/Nexis sales representative; call 1-800-833-9844 (United States), 1-518-487-3385 (international); fax 1-518-487-3584; or go to the Lexis/Nexis Website.
ABIL on Twitter. The Alliance of Business Immigration Lawyers is now available on Twitter: @ABILImmigration. Recent ABIL member blogs are available at http://www.abilblog.com/.
Fredrikson & Byron will hold a seminar, “Navigating the Immigration Landscape: A Guide for Employers,” on Tuesday, May 5, 2015, from 7:30 am to 2 pm in Minneapolis, Minnesota. MORE INFORMATION OR TO REGISTER
Klasko Immigration Law Partners will hold its 11th annual Spring Seminar, “Immigration 2015: Hope Springs Eternal,” on Wednesday, April 22, 2015, from 9:30 am to 2 pm in Philadelphia, Pennsylvania. MORE INFORMATION OR TO REGISTER
Robert F. Loughran testified before the Texas Senate Subcommittee on Border Security against a proposed repeal of the DREAM Tuition Act in Texas. The legislation, originally passed in 2001 and subsequently copied by 16 other progressive states, allows students who are residents for three years in the state of Texas to pay in-state tuition at public universities in Texas without regard to their immigration status. Video of his testimony is available at https://www.youtube.com/watch?v=AeTF3vcZC1w.
Cyrus Mehta has authored or co-authored several new blog entries. “AAO Firmly Tethers H-1B Workers to an LCA Like a Dog Is To A Leash” “New L-1B Visa Guidance: Will There Be Fewer Denials Or More Of The Same?”
Mr. Paparelli has published a new blog post. “Immigration Howling, Hope, Hype and Hodgepodge: USCIS’s New L-1B Memo” is available at http://www.nationofimmigrators.com/uscis/immigration-howling-hope-hype-and-hodgepodge-usciss-new-l-1b-memo/.
Mr. Paparelli was quoted by the Wall Street Journal on April 1, 2015, in “Visa Demand for High-Skilled Foreigners Is Likely To Prompt Lottery.” He noted that “[t]he chances of being selected [in the H-1B lottery] are reduced further because demand has so increased.”
Stephen Yale-Loehr was quoted by McClatchy Washington Bureau in “Asylum for Homeschooling Enters Immigration Debate,” published on April 8, 2015. Mr. Yale-Loehr questioned whether homeschooling bans rise to the level of persecution required by asylum law. “Most courts have defined persecution as being something pretty significant. Generally, it’s hard to win asylum and they don’t want any decisions to make it seem easier to get asylum,” he noted.
Mr. Yale-Loehr spoke at a symposium, “Pluralism in Progress: Immigration Reform in the 21st Century,” presented on April 10, 2015, by the Spectemur Agendo Foundation, the Beta Charge of Theta Delta Chi, and the Cornell University International Student Union. MORE INFORMATION
Mr. Yale-Loehr was interviewed by Law360 on April 3, 2015, in “Q&A With Cornell Law School’s Stephen Yale-Loehr.” The article is available via registration.
Mr. Yale-Loehr was quoted in Politico.com on April 2, 2015, in “Touting Connections, Hillary Clinton’s Brother Takes on Philly Project.” The article discusses the EB-5 program. “From a marketing perspective, people think because a politician is involved, at least in China they think somehow it’s a better project or it’s got more name recognition,” he noted.
Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State’s latest Visa Bulletin with the most recent cut-off dates for visa numbers: