U.S. Citizenship and Immigration Services (USCIS) announced that it will resume premium processing (PP) for H-1B extensions. USCIS announced on May 19, 2015, that it was suspending PP applications, to allow the agency to implement the Employment Authorization for Certain H-4 Spouses final rule in a timely manner and adjudicate applications for employment authorization filed by H-4 nonimmigrants under the new regulations. This was noted in a previous blog posts, here.
On July 13 - 2 weeks earlier than the expected resumption date - USCIS started accepting PP applications once again. However, PP requests that were filed before July 13 will not be accepted.
According to an article in today's Law360, the U.S. Citizenship and Immigration Services (USCIS) director has stated that the recent court decision regarding changes in a H-1B worker's worksite might not apply to past location changes, which would be a huge relief to many H-1B employers.
The article reports that USCIS Director Leon Rodriguez said the agency is thinking of stipulating that Matter of Simeio Solutions LLC will only apply prospectively, according to the Society for Human Resource Management and attorneys who were in attendance at the meeting. A representative for USCIS apparently declined to comment.
The Simeio decision from the Administrative Appeals Office (AAO) stated that employers must file an amended H-1B petition and an updated Labor Condition Application (LCA) if a H-1B worker moves to a different location from the location named in the original petition and LCA. Following the decision, USCIS issued guidance saying that
(a) There was no need for an amended petition if the new location was in the same Metropolitan Statistical Area (MSA).
(b) Employers must file a new H-1B decision by August 19, 2015, to cover new locations, including changes that occurred before Simeio. For some employers, including consulting companies that move employees frequently, this could mean hundreds of new petitions.
According to the Law360 article,
"USCIS may have...realized that by requiring Simeio to apply retroactively, it may have been bumping up against some recent court rulings, such as the Seventh Circuit's holding in Velasquez-Garcia v. Holder last year, [Cyrus] Mehta said. In that decision, the appeals court held that retroactively applying a new filing rule created by the Board of Immigration Appeals had resulted in a "manifest injustice" in the petitioner's case."
Before the Simeio decision, immigration lawyers relied on USCIS guidance that stated that a new petition was not needed if the employer had received a certified LCA for the new location before the move.
Stay tuned for more updates as USCIS figures out its position...
Eligible H-4 dependent spouses may now apply for employment authorization (EAD/work permit) under the H-4 rule (explained in an earlier blog post). On February 24, 2015, USCIS announced that the Department of Homeland Security (DHS) would begin accepting applications for employment authorization from certain H-4 spouses on May 26, 2015.
Starting today, you may apply for employment authorization under this rule if your H-1B spouse has:
(a) an approved I-140 (petition for immigrant worker) or
(b) an extension of H-1B status past the initial 6-year limit
The H-4 spouse can apply for work authorization using Form I-765, available here. The application can be filed with another petition (e.g. extension/change of status), or separately. The H-4 spouse can start working when they receive their Employment Authorization Document, which will be valid for the remainder of the H-4 status - up to three years. The EAD allows for open market employment, in any field.
For more information on applying for employment authorization under the H-4 rule, please visit the Employment Authorization for Certain H-4 Dependent Spouses Web page and the USCIS list of Frequently Asked Questions.
U.S. Citizenship and Immigration Services (USCIS) has unexpectedly announced that it will temporarily suspend premium processing for all H-1B Extension of Stay petitions starting on May 26, 2015. The suspension will continue through July 27, 2015. During this time frame, petitioners will not be able to file Form I-907, Request for Premium Processing Service, for a Form I-129, Petition for a Nonimmigrant Worker, requesting an extension of H-1B status. The announcement only applies to extension requests.
Any Premium Processing requests filed before May 26 will be honored, although the announcement continues to state that USCIS will refund the premium processing fee if:
This temporary suspension will apparently allow USCIS to implement the Employment Authorization for Certain H-4 Spouses final rule in a timely manner and adjudicate applications for employment authorization filed by H-4 nonimmigrants under the new regulations.
Please contact us if you have any questions about the new announcement.
Elaine Martin has been practising US and global immigration law since 1997. She is an immigrant herself (from Ireland), so has a special understanding of the legal and emotional challenges involved in relocating to a new country.