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  1. AAO DECIDES: Amend petition if you change job location or risk revocation. By Rohit T

    In Matter of Simeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015); AILA Doc. # 15040969 (posted on 04/09/2015): the AAO rendered a decision that may have a tone of finality in the context of when to file an amended H-1B petition. Or suffer the consequences – revocation of the originally approved petition.
    The AAO’s ratio decidendi:

    1. A change in the place of employment of a beneficiary to a geographical area requiring a corresponding Labor Condition Application for Nonimmigrant Workers (LCA) be certified to the U.S. Department of Homeland Security 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.


    An H-1B petition requires an underlying approved Labor Condition Application (LCA). The LCA specifies terms and conditions that an employer must comply with to protect US workers and to enable an employee to maintain valid status. Inter alia, if a job location changes during an individual’s employment from the original “area of intended employment” and if that new job location is not listed as an “area of intended employment” in the originally approved LCA, a new LCA is required to be filed and approved by the US Department of Labor (DOL) before an individual can commence working at the new job location.
    An “area of intended employment” is defined at 20 CFR, §655.17.

    “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).
    There has been much debate – between attorneys and informed employers alike - as to whether a mere change of job location – whether within or beyond the originally approved “area of intended employment” mandates the filing and approval of an amended H-1B petition with the USCIS.
    It is important to acknowledge the guidance most often followed till date –till the rendering of this Simeio decision – the 2003 Hernandez letter to Lynn Shotwell, AILA Document # 03112118. (Posted on 11/21/03). This was a very useful and oft used guidance re: filing an amended petition pursuant to a new LCA. It is equally significant to note how this correspondence ended:

    “Please be aware that the USCIS will explore the issue of the need to file amended H-IB petitions in the context of regulations implementing the American Competitiveness in the Twenty-First Century Act (AC2I), and related legislation. Our position on this issue, therefore, is subject to change” (emphasis added).
    Query: If an employer procures an approved LCA for the new location, does that require the employer to file an amended petition? What, if any are the possible exceptions to that requirement?
    Conservative wisdom suggests that if a new LCA is required, an amended petition is required. With audits and investigations on the rise, many have decided to pursue this less confrontational route and comply as best possible with the conservative thought process. Quite to the contrary, and in the absence of definitive guidance, many employers have chosen to follow a different path, and file the new LCA but not follow up with the expense and uncertainty (of an approval) of an amended petition. Of course, any employer who does not even file a new LCA does so at its own peril.

    Some lessons and take-aways from the Simeio Solutions decision:

    1. The LCA process is intended to protect US workers by “eliminating economic incentives or advantages in hiring temporary foreign workers”, page 545 of the decision.
    2. An H-1B employer must expect a site visit at the location stated on the LCA and the Form I-129 petition. The days of “if” are long gone, and an employer should only deal with a “when” an audit will be conducted.
    3. If there is a location change, and the USCIS is not informed of such change, the USCIS would not be able to conduct the site visit. That could jeopardize an approved H-1B petition, and the individual’s status.
    4. If the changed location is different from the one stated on the originally approved LCA and Form I-129 petition, at the least a new LCA is required, followed by the required “posting” at the new location.
    5. If the location change is outside the MSA that covers the location stated in the approved LCA and Form I-129 petition, it is more than likely that there will be at least a salary change (a discussion of “prevailing wage and actual wage” is beyond the scope of this article). If there is a salary change this may affect eligibility for H-1B status. It is also more than likely that this will entail a “material change” in the terms and conditions of employment. This will require a new LCA from the DOL, AND an amended petition that corresponds with the new LCA must be filed with and approved by the USCIS.
    6. An employer must “immediately” notify the USCIS of any changes in the terms and conditions of employment. The normal process for this is the filing of an amended petition.
    7. The AAO tries to harmonize its decision with earlier USCIS communications on page 547, footnote 7: “This interpretation of the regulations clarifies, but does not depart from, the agency’s past policy pronouncements …. To the extent any previous agency statements may be construed as contrary to this decision, those statements are hereby superseded”. There goes the 2003 Hernandez letter referenced above!
    8. On page 549 of this decision, the AAO states, “By failing to file an amended petition with a new LCA, …. a petitioner may impede efforts to verify wages and working conditions. Full compliance with the LCA and H-1B petition process, including adhering to the proper sequence of submissions to DOL and USCIS, is critical to the United States worker protection scheme established in the Act and necessary for H-1B visa petition approval”.


    Some issues that the AAO leaves open for another day, a more thoughtful debate, and a later decision:

    1.Does an employer need to file a new LCA where only the location changes but remains within the same MSA – example: a change from one building to another, or a change within a couple of blocks in the same town, etc.?



    The USCIS would not be able to undertake successful site visit in either case! Is there any material change in the terms and conditions of employment in such a location change only?

    2. The AAO acknowledges on page 547, footnote 7: “We need not decide here whether, …. there may be material changes in terms and conditions of employment that do not affect the alien’s eligibility for H-1B status but nonetheless require the filing of an amended or new petition”.



    3. The AAO also did not address nor was it asked to consider the location change as a “short term placement” or “non-worksite location” or “assignment”. Page 547, footnote 8.



    Quite apart from the open questions, one would be best served by paying heed to the AAO’s current thinking. If you don’t, there is the clear possibility that at the very least the H-1B petition may be revoked. If that transpires, the individual beneficiary of that petition may fall out of status or worse yet, be stuck outside the US and not get the desired H-1B visa; and the employer will have lost a valuable resource.
    Moral of the decision: When in doubt, file an amended petition.

    Updated 04-16-2015 at 03:32 PM by ITImmigrationBlog

  2. VICTORY FOR H-4 VISA HOLDERS – CAN WORK! By Rohit Turkhud

    So, finally we have it – the USCIS’ Director, Leon Rodriguez, announced on February 24, 2015 that as of May 26, 2015, the USCIS will accept and process an application for an Employment Authorization Document (EAD) from an H-4 visa holder dependent spouse. To date, an H-4 is not permitted to work in the US.

    The H-4 is a visa category in our immigration laws for the dependent spouse and children of an H-1B visa holder. This regulatory change applies only to certain qualified dependent spouses.

    This is a much anticipated relief-benefit by many in light of President Obama’s Executive Action/Order announced in November 2014. This benefit will be available to spouses of H-1B visa holders only, and not to the dependent children. It will also be available to certain spouses only.

    Mr. Rodriguez announced that, effective May 26, 2015, the Department of Homeland Security (DHS) is extending eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants who are seeking employment-based lawful permanent resident (LPR) status. DHS amended the regulations to allow these H-4 dependent spouses to accept employment in the United States.”

    Who is a qualifying spouse who can avail of this new benefit? Per the USCIS’ press release of February 24, 2015:

    Eligible individuals include certain H-4 dependent spouses of H-1B nonimmigrants who:


    • Are the principal beneficiaries of an approved Form I-140, Immigrant Petition for Alien Worker
    • Have been granted H-1B status under sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000 as amended by the 21st Century Department of Justice Appropriations Authorization Act. The Act permits H-1B nonimmigrants seeking lawful permanent residence to work and remain in the United States beyond the six-year limit on their H-1B status.


    The press release can be read in its entirety at: http://www.uscis.gov/news/dhs-extend...nent-residence.

    Take-aways from the press release and the notice published in the Federal Register:

    • The USCIS will begin accepting applications on May 26, 2015. No application should reach the USCIS before May 26, 2015.
    • Naturally, applicable fees will need to be paid to the USCIS.
    • Supporting documentation will need to be provided, as always.
    • The qualifying dependent spouse can commence work ONLY AFTER he/she receives the EAD.
    • This newly extended employment authorization will benefit the US economy by offering employment to qualified individuals who would not otherwise have been able to work.
    • Such employment authorization “will reduce the economic burdens and personal stresses [on] H-1B nonimmigrants and their families …. and facilitate their integration into American society.”
    • “The change should also support the U.S. economy because the contributions H-1B nonimmigrants make to entrepreneurship and science help promote economic growth and job creation.”
    • “The rule also will bring U.S. immigration policies more in line with those laws of other countries that compete to attract similar highly skilled workers.”


    The USCIS anticipates that about 179,600 individuals will benefit in the first year, followed by about 55,000 beneficiaries in subsequent years.

    The USCIS has also published this amendment to the regulation in the Federal Register dated February 25, 2015.

    In the Federal Register/Volume 80 No. 37/Wednesday, February 25, 2015 / Rules and Procedures, page 10285, in part C, Summary of the Major Provisions of the Regulatory Action, the USCIS has confirmed that “DHS is making additional revisions to 8 CFR 214.2(h)(9)(iv) and 8 CFR 274a.13(d) to permit H–4 dependent spouses under this rule to concurrently file an Application for Employment Authorization (Form I–765) with an Application to Extend/Change Nonimmigrant Status (Form I–539).”

    The USCIS has recently (February 26, 2015 at about 2 pm) concluded a call with stakeholders expressly held for the purpose of discussing this regulatory change.
    Per the USCIS:

    • they will issue an FAQ in the very near future to respond to many queries that were raised during the call, especially to address queries to which there were not ready answers;
    • the underlying Form I-140 MUST be approved, and cannot be pending to allow the dependent H-4 spouse to avail of this benefit;
    • if the underlying Form I-140 is “revoked”, the dependent H-4 spouse will no longer qualify to apply for this EAD benefit;
    • they will issue specific instructions for filing the Form I-765 Application;
    • there will be no Premium Processing for this EAD application;
    • the Form I-765 can be filed concurrently with the Form I-129 and the Form I-539 (this corroborates and extends what is already stated in the Federal Register – please see above);
    • this EAD application will also be controlled by the 90 days processing time line. BUT, they are yet to clearly state and explain when that 90 days period will commence;
    • the Form I-765 will be updated to allow for the correct qualifying selection. It will be “(c)(26)”;
    • the Form I-765 cannot be filed “electronically”. It will be only a “paper” filing;
    • the EAD’s end date will be the same end date as the H-4 visa status; and
    • they will revert to questions that sought clarification on the interplay between this EAD benefit and the provisions of INA, § 106 that deals with AC21.

    This author acknowledges the many benefits that will flow from an expansion of this benefit to H-4 dependent spouses of being able to be employed in the US. This benefit brings the US in line with many other developed countries and will further strengthen the US’ position as the “dream destination” for most foreign workers and potential immigrants.

    However, this author also wonders what, if any, maybe the fall-out from this benefit vis-à-vis the US employers. I offer some food for thought:

    • If the facts of a particular case permit a qualified H-1B individual to convert to an H-4 EAD visa/status, how will that impact compliance with H-1B regulations? Will employers and employees perceive a silver lining, however unintended, to this benefit?
    • If a qualified H-1B individual converts to an H-4 EAD visa/status, how will that impact the attrition rate at some employers?
    • It is true that an employed H-4 individual can and will contribute to the economy and his/her family. But will such access to employment and mobility of employment create unintended ripple effects for some employers? Will the passage of time even the playing field, and will market forces prevail?
    • If a qualified H-1B individual converts to an H-4 EAD visa/status what impact will that have on a pending Green Card application with that same employer, more specifically re: the employer being able to continue to prove its ability to pay the DOL determined prevailing wages? One may imagine a couple of challenging situations that may compromise the Green Card application.
    • Will the movement from an H-1B to an H-4, and vice versa, where such options may exist, complicate the applicability of laws and regulations which allow for recapture of time when one is not on an H-1B visa-status, or the ability to extend an H-1B beyond the normal 6 years? This refers to INA, §106 (a) and (c).
  3. DOL Alert: Technical Issues with ETA Form 9035 – DOL Working to Fix By Rohit Turkhud

    Reproduced below is an alert from the Department of Labor with reference to the Form ETA-9035. This form is the Labor Condition Application that must be filed and approved before an employer can file an H-1B petition with the USCIS. Recently, as of February 21, 2015, as can be seen from the below “trail” there have been errors reported to the DOL. These are technical glitches which could affect the approval of the Form ETA-9035, and possibly the H-1B petition that is filed pursuant to an approved LCA.

    The USCIS has been made aware of these issues, and the USCIS has responded favorably and reasonably to this challenge.

    [Removed due to copyright issues.]


    About The Author



    Rohit Turkhud has been specializing in the practice of the US Immigration & Nationality Laws since 1985. For the first 9 years of his career his practiced focused on asylum and removal cases. Since 1994 he has been specializing in employment based and family based matters. From 1994 to 2001 Rohit served in senior executive positions at IT companies and headed their legal and international recruiting divisions. He was an integral part of setting up an IT company's UK operations and travelled extensively to the UK in the discharge of those responsibilities. From June 2004 to September 2012 he was a partner at the Law Offices of Cyrus S. Nallaseth PLLC, and at Nallaseth & Turkhud PLLC. He continues to focus on employment based immigration matters. Rohit has joined FLG, as a partner, in the pursuit of excellence and expansion. Rohit seeks to contribute to the international growth of FLG and help ensure that we always provide the quality of services and attention to customer satisfaction that has catapulted FLG to the top of law firms specializing in the field of immigration laws. He is proud to be a member of a team that reaches from Miami to San Francisco and from New York to Denver, with Michigan being the heart of the network. He has authored a frequent immigration law column for India Today's North American edition. He is a guest speaker on business immigration issues, specially relating to H-1B and the new PERM rules and regulations. He has authored an article in the second edition of the authoritative "THE PERM BOOK". On the second and fourth Tuesday of each month, Rohit hosts a prime time LIVE immigration show on Jus Punjabi, a national cable network channel. Mr. Turkhud is fluent in the Hindi, Gujarati and Marathi languages.

    Updated 02-27-2015 at 05:28 PM by ITImmigrationBlog

  4. The US and China Announce Favorable Visa Reciprocity Terms. By Rohit Turkhud

    Effective November 12, 2014, the US State Department announced that they will reciprocally increase the validity of short-term business and tourist visas and student and exchange visas issued to each other’s citizens.

    The cable reads:

    “The United States and China to Extend Visas for Short-term Business Travelers, Tourists, and Students

    NOVEMBER 10, 2014


    Starting on November 12, the United States and the People’s Republic of

    China will reciprocally increase the validity of short-term business and
    tourist visas and student and exchange visas issued to each other’s citizens.
    Chinese applicants who qualify for a B-category nonimmigrant visa (NIV)
    may now be issued multiple-entry visas for up to 10 years for business and
    tourist travel. Qualified Chinese students and exchange visitors and their
    dependents who qualify for F, M, or J-category visas are now eligible for
    multiple-entry visas valid for up to five years or the length of their program.
    U.S. citizens eligible for Chinese short term business and tourist visas
    should also receive multiple-entry visas valid for up to 10 years, while
    qualified U.S. students may receive student residency permits valid up to
    five years, depending on the length of their educational program.
    Please review our FAQs for more information.”

    The first FAQ is most representative of the thought process underlying the reciprocal benefit that will flow from extending the validity period of the visas in question.

    Q: What are the benefits of the visa validity extension?
    U.S. and Chinese citizens who regularly travel back and forth between the U.S. and China will benefit from the longer validity by not having to apply and pay the application fee every year. Businesses in both countries, including the tourism industry, will benefit from increased travel, investment, and business development opportunities between the two countries. Longer visa validity will allow students and exchange visitors to return to their home countries during school and work holidays more easily.

    The FAQs, which include information about application fees, and processing times, can be reviewed in their entirety at:

    http://travel.state.gov/content/visa...end-visas.html

    About The Author


    Rohit Turkhud has been specializing in the practice of the US Immigration & Nationality Laws since 1985. For the first 9 years of his career his practiced focused on asylum and removal cases. Since 1994 he has been specializing in employment based and family based matters. From 1994 to 2001 Rohit served in senior executive positions at IT companies and headed their legal and international recruiting divisions. He was an integral part of setting up an IT company's UK operations and travelled extensively to the UK in the discharge of those responsibilities. From June 2004 to September 2012 he was a partner at the Law Offices of Cyrus S. Nallaseth PLLC, and at Nallaseth & Turkhud PLLC. He continues to focus on employment based immigration matters. Rohit has joined FLG, as a partner, in the pursuit of excellence and expansion. Rohit seeks to contribute to the international growth of FLG and help ensure that we always provide the quality of services and attention to customer satisfaction that has catapulted FLG to the top of law firms specializing in the field of immigration laws. He is proud to be a member of a team that reaches from Miami to San Francisco and from New York to Denver, with Michigan being the heart of the network. He has authored a frequent immigration law column for India Today's North American edition. He is a guest speaker on business immigration issues, specially relating to H-1B and the new PERM rules and regulations. He has authored an article in the second edition of the authoritative "THE PERM BOOK". On the second and fourth Tuesday of each month, Rohit hosts a prime time LIVE immigration show on Jus Punjabi, a national cable network channel. Mr. Turkhud is fluent in the Hindi, Gujarati and Marathi languages.

    Updated 12-10-2014 at 02:08 PM by ITImmigrationBlog

  5. Additional Data needed from VWP entrants By Rohit Turkhud

    Just a few days ago, on November 3, 2014, Department of Homeland, Secretary Jeh Johnson released a statement relating to additional security enhancements to the Visa Waiver Program.

    “For Immediate Release

    DHS Press Office

    Contact: 202-282-8010

    Effective today, those seeking to travel to the United States from countries in our Visa Waiver Program (VWP) will be required to provide additional data fields of information in the travel application submitted via the Electronic System for Travel Authorization (ESTA). The new information sought includes additional passport data, contact information, and other potential names or aliases. We are taking this step to enhance the security of the Visa Waiver Program, to learn more about travelers from countries from whom we do not require a visa. We are also confident these changes will not hinder lawful trade and travel between our Nation and our trusted foreign allies in the Visa Waiver Program.”

    The above statement can be viewed at: http://www.dhs.gov/news/2014/11/03/s...waiver-program

    About The Author


    Rohit Turkhud has been specializing in the practice of the US Immigration & Nationality Laws since 1985. For the first 9 years of his career his practiced focused on asylum and removal cases. Since 1994 he has been specializing in employment based and family based matters. From 1994 to 2001 Rohit served in senior executive positions at IT companies and headed their legal and international recruiting divisions. He was an integral part of setting up an IT company's UK operations and travelled extensively to the UK in the discharge of those responsibilities. From June 2004 to September 2012 he was a partner at the Law Offices of Cyrus S. Nallaseth PLLC, and at Nallaseth & Turkhud PLLC. He continues to focus on employment based immigration matters. Rohit has joined FLG, as a partner, in the pursuit of excellence and expansion. Rohit seeks to contribute to the international growth of FLG and help ensure that we always provide the quality of services and attention to customer satisfaction that has catapulted FLG to the top of law firms specializing in the field of immigration laws. He is proud to be a member of a team that reaches from Miami to San Francisco and from New York to Denver, with Michigan being the heart of the network. He has authored a frequent immigration law column for India Today's North American edition. He is a guest speaker on business immigration issues, specially relating to H-1B and the new PERM rules and regulations. He has authored an article in the second edition of the authoritative "THE PERM BOOK". On the second and fourth Tuesday of each month, Rohit hosts a prime time LIVE immigration show on Jus Punjabi, a national cable network channel. Mr. Turkhud is fluent in the Hindi, Gujarati and Marathi languages.

    Updated 12-08-2014 at 02:19 PM by ITImmigrationBlog

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