The Department of Homeland Security (DHS) has issued a new rule that transforms the random cap H-1B selection process to one that prioritizes registrations and petitions based on the highest Department of Labor (DOL) prevailing wage level met by the offered salary. It is not clear yet whether the incoming Biden administration will implement this rule at all or with modifications. Learn more in our recent client alert.
H-1B Wage Rules Rescinded – Another Win for Employment-Based Immigration
A challenge brought by the U.S. Chamber of Commerce to the new H-1B wage levels and the new definition of “Specialty Occupation” was upheld by the United States District Court for the Northern District of California on December 1, 2020. The plaintiff’s Summary Judgement motion was granted when the Court held that the government failed to demonstrate good cause for not following the normal notice and comment procedures required for immigration regulations. The government’s failure to follow the proper rulemaking procedures makes the new rules invalid and requires them to be rescinded by the government. Continue reading “H-1B Wage Rules Rescinded – Another Win for Employment-Based Immigration”
Proposed Student Visa Rules end Duration of Status, Require Extension Applications
On September 25, Immigration and Customs Enforcement (ICE), the DHS agency with jurisdiction over F-1 foreign student visa holders, published new proposed regulations that would end the long time U.S. practice of issuing “Duration of Status” to F-1 students. Instead, F-1 visa holders would be limited to 2 or 4 year visa terms depending upon their country of origin, and be required to reapply for F-1 Status through USCIS to obtain extensions, or to leave the United States and apply for an extension . The proposed regulations were immediately criticized by the higher education community. The rules were called ill-conceived, misguided, unnecessary, and a burden to an industry that has already seen a steady decline in international student admissions. Read the full blog post here.
USCIS Issues Final Guidance on H-1B Amendments under Matter of Simeio
U.S. Citizenship and Immigration Services (USCIS) has released its final guidance on when to file an amended or new H-1B petition after the Matter of Simeio Solutions, LLC decision.
Change in CIS Policy on worksite/location changes: On April 9, 2015, the USCIS’ Administrative Appeals Office (AAO) issued a precedent decision, Matter of Simeio Solutions, LLC, ruling that when an H-1B employee changes work site locations, it is considered a material change that may require the filing of an amended or new H-1B petition with USCIS.
Previous USCIS Guidance: Under the previous USCIS guidance, if a new Labor Condition Application (LCA) was filed with the U.S. Department of Labor (DOL) prior to the work site location change, no amended or new H-1B petition was required to be filed with USCIS.
New USCIS Guidance: Under the new USCIS Guidance, if an H-1B employee is changing work site locations and the new work site location is not within the same Metropolitan Statistical Area (MSA) as the current worksite location, then an amended or new H-1B petition must be filed with USCIS.
If the worksite change is within the same MSA, no amended or new H-1B petition is required; however, copies of the original certified LCA listing the current work site location will need to be posted at the new work site location prior to the H-1B employee beginning employment at the new location. After the requisite posting period, the posted original certified LCA copies must be placed in the Public Access File notated with the dates and places of posting.
Compliance: If an employer complied with the pre-Simeio decision USCIS Guidance, by completing a new LCA before the worksite change, and the H-1B employee work site changed occurred on or before April 9, 2015, USCIS will not pursue any new adverse actions against the employer after July 21, 2015 that are based solely upon a failure to file an amended or new H-1B petition to address the work site location change. USCIS will however, preserve the right to pursue any adverse actions (related to work site location changes) which have commenced or been completed prior to July 21, 2015, and will also still continue to pursue adverse actions for other violations.
However, USCIS provides a safe harbor, if an employer files amended or new H-1B petitions on or before January 15, 2016 to address prior work site changes for H-1B employees (including cases that followed the pre-Simeio decision USCIS Guidance for work site location changes prior to April 9, 2015, with the filing of new LCAs listing the new work site location). USCIS will consider those filings timely, and not subject to adverse action by USCIS for failure to file an amended or new H-1B petition to address the work site location change.