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Update: USCIS Final Guidance on When to File an Amended or New H-1B Petition after Matter of Simeio Solutions, LLC

Today USCIS issued its long awaited USCIS final guidance on how to implement the AAO precedent decision Matter of Simeio Solutions, LLC on when an amended or new H-1B petition must be filed.  By way of background, after years of allowing ‘LCA Amendments’ in H-1B cases involving solely a change in job sites, on April 9, 2015, the AAO’s sudden adoption of Matter of Simeio Solutions as precedent now requires a full H-1B amendment to be filed in most such cases: for many H-1B employers the AAO holding essentially mandates increased risk, complexity, cost, delay and uncertainty  Interestingly, it is probable that the need for a Matter of Simeio Solutions  came about, at least in part, to combat the widespread adoption of LCA amendments which became more popular after the USCIS issued the January 2010 Neufeld Memo, (about which I was interviewed by BBC Hindi), another suddenly imposed mandate that also increased risk, complexity, cost, delay and uncertainty for H-1B businesses (and from which USCIS somewhat backed away on later that same year).  In any case, after August 19, 2015 USCIS will require that a full H-1B amendment be filed together with a $325 fee.  Judging by recent H-1B regular processing times, USCIS may adjudicate these cases 3-6+ months after they are filed (faster if the Employer also pays USCIS a $1225 premium processing government fee).

USCIS guidance on Matter of Simeio Solutions provides an H-1B petitioner (employer) three different deadlines depending on when its employee changed location:

a) If, on or before April 9, 2015, a petitioner’s H-1B employee moved to a new place of employment (not covered by an existing, approved H-1B petition): an H-1B requirement may be filed, but is not required to be filed.USCIS indicates that in such cases, it “will generally not pursue new revocations or denials based upon failure to file an amended or new petition. However, notices of intent to revoke, revocations, requests for evidence, notices of intent to deny, or denials issued prior to July 21, 2015 (date of this final guidance) remain in effect and the petitioner must comply with them

b) If, after April 9, 2015 but prior to August 19, 2015, a petitioner’s H-1B employee moved to a new place of employment (not covered by an existing, approved H-1B petition): “The petitioner must file an amended or new petition by January 15, 2016. USCIS will consider filings prior to the deadline for this safe harbor period to be timely for purposes of the regulation. However, if the petitioner does not file the amended or new petition within the time permitted, the petitioner will be out of compliance with DHS regulations. The petitioner’s current Form I-129, Petition for a Nonimmigrant Worker, H-1B petition approval will be subject to a notice of intent to revoke and the employee may be found to not be maintaining his or her H-1B status.”

c) If, on or after August 19, 2015, a petitioner’s H-1B employee moved to a new place of employment (not covered by an existing, approved H-1B petition): “The petitioner must file an amended or new petition before an H-1B employee starts working at a new place of employment not covered by an existing, approved H-1B petition.”

While acknowledging favorably USCIS’ grant of additional time for compliance with Matter of Simeio Solutions, one of the primary issues faced by an H-1B employer presently is that while it may place its H-1B employee at a new job site and initiate work there at roughly the same time as in LCA amendment situations, in reality it may be immeasurably difficult to expect all affected parties to wait for a final USCIS adjudication (for which a longer wait than usual is likely based on the number of applications expected to be filed).  Second: such adjudications are often preceded by the issuance of and response to (usually) lengthy Requests for Evidence that frequently require both the employer and the employee to essentially ‘reinvent the wheel’, in other words, reestablish many elements of the case over again, including, amazingly, specialty occupation and beneficiary’s qualifications.  These adjudications can be expensive, time consuming and can ultimately result in denials of previously approved H-1B petitions, at an especially inopportune moment for the Employer/Employee (new assignment, new project etc).  This is both because unlike Matter of Simeio Solutions, the vast majority of AAO are non-precedent/ not binding on USCIS, and because USCIS is simply not required to grant discretion in extensions or amendments of H-1B employment involving the same employee and same employer,

“CIS has the authority to question prior determinations. Adjudicators are not bound to approve subsequent petitions or applications seeking immigration benefits where eligibility has not been demonstrated, merely because of a prior approval which may have been erroneous. Matter of Church Scientology International, 19 I&N Dec. 593, 597 (Comm. 1988). Each matter must be decided according to the evidence of record on a case-by-case basis. See 8 CFR § 103.8(d).”

Yates Memo of April 23, 2004 “The Significance of a Prior CIS Approval of a Nonimmigrant Petition in the Context of a Subsequent Determination Regarding Eligibility for Extension of Petition Validity.”

In short: minor location changes alone will now expose an H-1B employer to additional delay, expense and to the Totality of USCIS Scrutiny. Matter of Simeio Solutions and today’s policy guidance are certain to have a widespread impact on a variety U.S. business sectors, and like the January 2010 Neufeld Memo, both maintain the appearance of being engineered specifically to target the U.S.’ Information Technology Consulting sector, and by extension, Indian Nationals, who also received 70% of all H-1B petitions approved in FY2014.

There is a sharp dichotomy between our Nation’s Business and Family Immigration Policies: the former is lucky to receive an iota of the political attention and importance that the latter enjoys fairly consistently. By ratifying Matter of Simeio Solutions, USCIS has taken a firm step towards joining the Department of StateConsulates in steering the H-1B program down the same Road to Redundancy most recently traveled by the once-useful-but-no-longer-viable-for-US-business L-1B and ‘B-2 in Lieu of H-1B‘ programs (The F-1 OPT is next – and already targeted by anti-H-1B groups).  However, for U.S. businesses to grow, particularly those within STEM fields, our policymakers and stakeholders must acknowledge the critical import of Business Immigration programs such as the H-1B, and the significant contribution that H-1B professionals make towards our Nation’s future.  Aid must be provided in identifying and removing unreasonable obstacles from these programs in favor of sustainable solutions which must be effected through a lengthier rule-making process incorporating greater input from stakeholders to establish expeditious, cost-effective and workable solution(s) that to satisfy both USCIS and U.S. Business’ requirements.

It is abundantly clear that the U.S. maintains a critical and demonstrated need for H-1B professionals, and certainly for the continued viability of the H-1B program itself.  This fact is demonstrated most recently in April 2015 by the 233,000 H-1B applications filed by professionals for one of the approximately 85,000 spots in our (insufficient) yearly quota.  Our rejection of hundreds of thousands of professional workers over the years is untenable: it negatively impacts our ability to conduct business and attract the world’s Best and Brightest.  Further, while other nations eagerly recruit STEM workers (sometimes from within our own borders) each year we see more restrictions and obstacles ‘added-on’ to Business Immigration Programs, most particularly the H-1B.

Links:

USCIS POLICY GUIDANCE OF JULY 21, 2015 – Final Guidance on When to File an Amended or New H-1B Petition After Matter of Simeio Solutions, LLC

SIMEIO SOLUTIONS, LLC, 26 I&N Dec. 542 (AAO 2015) (PDF)

NEUFELD MEMO – January 2010 Neufeld Memo

Ashwin Sharma interviewed about H-1B visas in the September issue of the Florida Trend Magazine

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via http://www.floridatrend.com

Florida Trend magazine’s article highlights many of the unreasonable constraints and scrutiny facing the H-1B professional worker program in the U.S. today.  Excerpt follows:

Read More…

Update: USCIS has Issued a “Notice to Disregard” its previously issued I-485 RFEs asking Derivative Beneficiaries for Principle Applicant Evidence

By Ashwin Sharma, Esq. 07/01/201

Our firm has received several “Notices to Applicants” from USCIS today which confirmed our prediction that USCIS had erroneously issued the large numbers of I-485 Requests for Evidence (RFE) requesting Principle Applicant evidence (letter from employer, etc) from Derivative Applicant spouses.  We thank USCIS for clarifying this situation quickly; these RFE’s caused a great deal of confusion among applicants and their attorneys, especially in light of the potential for upcoming PD movement.

The USCIS Notice to Applicant indicates the following:

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NBC Newswire and The Associated Press joins Reuters in reporting on possibility that the entire year’s H-1B Work Visa Quota could be exhausted in a week

Steve Jobs and Bill Gates at the fifth D: All ...

Steve Jobs and Bill Gates at the fifth D: All Things Digital conference (D5) in 2007 (Photo credit: Wikipedia)

NBC Newswire and The Associated Press have added to yesterday’s Reuter’s article, for which I was interviewed, reporting on the possibility that the entire year’s national quota of H-1B Professional Work Visas could be used up in as little as a week’s time.  The article discusses the recent Republican led attempt to reform immigration for highly skilled workers through the failed STEM Jobs Act, and makes the point that such an obvious demand for skilled workers sends a clear signal that the U.S. economic collapse is over and that Congressional overhaul of the H-1B should be part of any Comprehensive Immigration Reform legislation.  Congress would do wise to listen to the likes of more than 100 top tech leaders including Mark ZuckerbergBill Gates and even the late Steve Jobs, all of whom were proponents of increasing limits on Professional Work visas.

Dept. of Labor indicates that “Unusually High Number of Cases Filed”: Issuing Generic LCA Certification Notices

http://www.ashwinsharma.com, VIA AILA.org

More indications of the impending avalanche of H-1B cases set to be filed for the quota which opens April 1, and of the problems caused by DOL’s iCERT website. According to AILA, The U.S. Department of Labor has been sending the following e-mail to many LCA submitters: “Due to an unusually high volume of submitted cases, one or more Labor Condition Application cases you submitted recently was certified but the courtesy email informing you of the certification was not generated. Please log into the iCERT Visa Portal System to review your recently submitted cases and retrieve the certification(s).”

 

AILA’s Immigration Quicktake: House Judiciary Subcommittee Hearing on High-Skilled Immigration

American Immigration Lawyers Association: Immigration Quicktake: House Judiciary Subcommittee Hearing on High-Skilled Immigration

Fox News Poll indicates that 72% of registered voters Favor Allowing Undocumented Immigrants to Remain in the Country and Eventually Qualifying for U.S. citizenship, as long as Certain Conditions Met

English: Number of self-identified Democrats v...

English: Number of self-identified Democrats vs. self-identified Republicans, per state, according to Gallup, January-June 2010 http://www.gallup.com/poll/141548/States-Competitive-Terms-Party-Identification.aspx. 18 point Democratic advantage 10-17 point Democratic advantage 3-9 point Democratic advantage 2 point Democratic advantage through 2 point Republican advantage 3-9 point Republican advantage 10-17 point Republican advantage 18+ point Republican advantage (Photo credit: Wikipedia)

A recent poll by Fox News indicates that 72% of registered voters “favor allowing illegal immigrants to remain in the country and eventually qualify for U.S. citizenship, as long as they meet certain requirements like paying back taxes, learning English, and passing a background check”. This figure included 82% of Democrats, 63% of Republicans and 70% of Independents polled.

Cato Institute Study: Poor Immigrants Use Public Benefits at a Lower Rate than Poor Native-Born Citizens

Cato Institute

Cato Institute (Photo credit: Wikipedia)

Cato Institute’s new report entitled, “Poor Immigrants Use Public Benefits at a Lower Rate than Poor Native Born Citizens” has concluded that low income immigrants utilize public benefits at lower rates than their American born counterparts.  The study also indicates that the cost of this lower level of utilization and benefits to immigrants means that it costs less to provide public benefits to “non-citizen immigrants and most naturalized immigrants” is lower than for those born in America.

 

Preview of President Obama’s immigration reform plan: nothing yet planned for STEM workers or Employment/Family Based Immigrants waiting in line

English: 'USCIS To Issue Redesigned Green Card'

English: ‘USCIS To Issue Redesigned Green Card’ (Photo credit: Wikipedia)

USA Today’s preview of the President’s Comprehensive Immigration Reform (CIR) plan indicates that it presently includes proposals for increased border security funding, a reworking of the employment verification protocol and, most importantly, an eight year legalization path for undocumented immigrants along with criminal checks, exams and back taxes.  Unfortunately, no word yet on relief for legal immigrants in the queue or STEM/Professional Workers.

Undocumented immigrants would wait eight (8) years to get a green card – the later of 1. eight years from the date the Immigration Reform passes or 2. until all legal immigrants currently waiting in line receive a green card (as the President had previously announced).  This would essentially mean the maximum wait time would be eight years, as plenty of legal immigrants are currently waiting up to 24 years for a family based green card (F4 Preference: U.S. Citizen filing for a brother/sister born in the Philippines) or 11 years for an employment based green card (EB3 Preference – U.S. Employer filing for an Indian skilled/professional worker).

While no one begrudges relief for undocumented immigrants, Comprehensive Immigration Reform will not be “Comprehensive” unless additional visa numbers are added for the family and employment based immigrants waiting patiently in line.

Senator Marco Rubio criticized by fellow Republican Senator David Vitter on Immigration Reform

Louisiana Senator David Vitter. An official ph...

Louisiana Senator David Vitter. An official photograph from his Senate website (Photo credit: Wikipedia)

On Laura Ingraham’s radio show, Senator David Vitter (R-LA) called out Senator Marco Rubio (R-FL) on the latter’s support of the Bipartisan Framework for Comprehensive Immigration Reform.  In doing so, Sen. Vitter has identified himself as one of the few vestigial remnants within the old Republican Party that cannot follow the simple math lesson taught by the recent Presidential Election:

Anti-Immigration Reform Platform=less than 40% of the Latino vote, where >40% of the Latino vote=White House.  

Or put more simply:

Anti-Immigration Reform Platform=Bad

While I do agree that any Republican primary could still be won by an Anti-IR candidate, we have clearly witnessed that it is simply not possible for said candidate to “reset” or “restate” this position in time to win the Presidential Election

Excerpt from the radio show:

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House Hearing Failed to Focus on Several Key Issues Crucial to Successful Immigration Reform

POLITICO Pro's Deep Dive: Immigration, Technol...

POLITICO Pro’s Deep Dive: Immigration, Technology and the 113th Congress (Photo credit: Cognizant Technology Solutions)

American Immigration Lawyers Association

FOR IMMEDIATE RELEASE
Wednesday, February 06, 2013
Contact:
George Tzamaras or Belle Woods
202-507-7649 – 202-507-7675
gtzamaras@aila.org – bwoods@aila.org

Washington, DC – Yesterday, the House Judiciary Committee held its first substantive hearing of the 113th Congress on “America’s Immigration System: Opportunities for Legal Immigration and Enforcement of Laws against Illegal Immigration.” While holding this hearing underscored the importance of immigration reform to our nation’s continued economic growth and future prosperity, for the most part the discussion failed to focus on some key issues that are vital to successful immigration reform.

“The solution to the tangled, unwieldy and dysfunctional immigration system is not a piecemeal approach, despite what several of the lawmakers and witnesses said yesterday. Instead, we need to create an immigration system that is balanced and inclusive,” said AILA President Laura Lichter. She continued, “At the hearing, we heard about the importance of border security and need to make our borders more secure, despite the fact that there have been billions of dollars invested and that the benchmarks established by each of the Senate immigration reform bills of 2006, 2007 and 2010 have been essentially met or exceeded. With immigration enforcement occurring at unprecedented levels, our country must address the needs of the 11 million undocumented residents, their families, and employers.”

Ms. Lichter noted, “Keeping all families strong and united is a core national value and interest, and we must continue our historic commitment to those values. We should not increase employment visas at the expense of reducing visas in family categories. Our immigration system must be flexible and capable of meeting the needs of American businesses and families.

“One important topic that didn’t seem to get much attention at the hearing was that we are currently denying basic due process to millions of people who live in the U.S. Long-time residents are subject to deportation even when they have strong ties to the community, pay taxes, and desperately want to become full-fledged members of our society. Many are eligible to apply for legal status, but because they lived in the U.S. for a period of time that was unauthorized they are now barred from fixing their status. Judges often have no ability to weigh the individual circumstances of the case while low-level officials often act as judge and jury, and the federal courts have been denied the power to review most agency decisions. Congress should restore fairness and flexibility to our system by authorizing immigration judges and officials to exercise discretion in considering the individual circumstances of each case,” she concluded.

AILA encourages lawmakers to commit to informed discussions that will shape a common sense immigration policy that helps to rebuild America’s economy, recognizes the contributions of immigrants, keeps families together, and strengthens America’s security.

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The American Immigration Lawyers Association is the national association of immigration lawyers established to promote justice, advocate for fair and reasonable immigration law and policy, advance the quality of immigration and nationality law and practice, and enhance the professional development of its members.

Ashwin Sharma interviewed about Immigration Reforms proposed by Sen. Rubio and the President

Immigration Attorney Ashwin Sharma was interviewed on the Channel 4’s Morning Show on the subject of the Gang of 8’s Bipartisan Framework for Comprehensive Immigration Reform versus President Obama’s proposal, and on the necessity of Immigration Reform in the country and within the Republican Party.

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