United States: Updates On Revised Procedures For Determining Immigrant Visa Availability And H-IB Filings For Worksite Location Changes

Rumors that the U.S. Department of State (DOS) would reengineer its system for determining immigrant visa availability became reality on September 9, 2015, as the DOS released its October 2015 Visa Bulletin highlighting the changes.

Going forward, the Visa Bulletin will now include a two-tier system that sets cut-off dates for both family-based and employment-based preference categories.

Tier 1 - Application Final Action Dates: These are the latest priority dates being adjudicated for immigrant visa or adjustment of status (AOS) application approvals; and

Tier 2 - Dates for Filing Visa Applications: These are the earliest priority dates indicating when applicants may file their I-485 AOS applications.

The new Visa Bulletin is likely to bring welcome relief to many employer-sponsored foreign nationals, especially those from China and India, who are most significantly affected by the visa backlogs that have existed for many years. In a statement it released yesterday, U.S. Citizenship and Immigration Services anticipates this revised process to lead to more accurate predictions of cut-off dates for visa issuance, thus ensuring that "the maximum number of immigrant visas are issued annually as intended by Congress, and minimiz[ing] month-to-month fluctuations in Visa Bulletin final action dates."

USCIS Final Guidance on When to File an Amended or New H-1B Petition

On July 21, 2015, U.S. Citizenship and Immigration Services (USCIS) released its final guidance on when to file an amended or new H-1B petition after the precedent decision in Matter of Simeio Solutions, LLC, issued on April 9, 2015, in which the USCIS Administrative Appeals Office (AAO) ruled that when an H-1B employee changes worksite locations, it is considered a material change that may require the filing of an amended or new H-1B petition with USCIS. 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 worksite 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 worksite locations and the new worksite 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 worksite location will need to be posted at the new worksite 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.

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 worksite change 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 worksite location change. USCIS will, however, preserve the right to pursue any adverse actions (related to worksite location changes) that 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 worksite changes for H-1B employees (including cases that followed the pre-Simeio decision USCIS Guidance for worksite location changes prior to April 9, 2015, with the filing of new LCAs listing the new worksite location). USCIS will consider those filings timely, and they will not be subject to adverse action by USCIS for failure to file an amended or new H-1B petition to address the worksite location change.

A copy of the applicable USCIS Policy Memorandum can be found at: http://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2015/2015-0721_Simeio_Solutions_Transition_Guidance_Memo_Format_7_21_15.pdf.

If you have any questions about this Alert, please contact any of the attorneys in our Immigration Practice Group or the attorney in the firm with whom you are regularly in contact.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.

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