AILA ISSUES COMMENTS ON SIMEIO SOLUTIONS

AILA submitted a 15 page comment to the USCIS in response to the USCIS’ request for comments about the Simeio Solutions decision.  MU Law published our submitted comments last week.

The Simeio Solutions decision now requires all H-1B employers to file an amended H-1B petition each and every time that an H-1B employee moves to a new location requiring an LCA.  AILA called into question the AAO’s throw-away line that the Simeio Solutions decision “may be construed as contrary” to prior USCIS interpretation on the issue.  AILA cited many instances of USCIS historical guidance over 20+ years, finding just one time that a USCIS official had implied that an amended H-1B was required.

Of equal importance, AILA points out that the USCIS ought not to issue quasi- legislative changes in policy and rules via AAO opinion.  This approach circumvents the Administrate Procedures Act.  It does not give the public a chance to comment on sweeping measures that impact all users of the program.  Finally, AILA points out this new rule raises substantial unresolved questions, which is the very reason for offering the public a chance to comment via the proper rule-making process.

MU LAW OFFERS COMMENTS TO USCIS ON SIMEIO SOLUTIONS DECISION

The USCIS' recent Simeio Solutions decision has caused much angst in the legal community.  Many commentators have questions both the USCIS policy goals and the legality of this decision.   

Perhaps in response to this feedback, the USCIS offered the public a chance to comment on the decision.  MU Law has offered its comments.  Our comments centered upon the AAO's misunderstanding of the materiality standard, which is the center-piece of the AAO decision.

You can read our comments at this link: 

MU Law Comment on Simeio Solutions decision

TALE OF A JOURNEY DOCUMENTARY

The European Union recently funded a documentary, Tale of a Journey, which tells the stories of Philippine nurses as they migrate to Europe.  Challenges such as missing families, learning new languages, and learning new cultures are explored.

The documentary gives a 360 degree view, as it also tells the stories of nurses who have returned to Philippines after spending sometime in both Europe and America.   It also includes interveiws with government officials and recruiters.  It is worth a watch for anyone intersted in this topic.

DOL UPDATING PERM

The US Department of Labor (DOL) announced on June 2, 2015 that it will begin the process of updating the PERM regulations.  The PERM regulations govern the labor certification process, the first phase of most green card cases. 

The PERM process requires the employer to test the US labor market in an effort to protect the US labor force.  PERM is required for Occupational Therapists, Medical Technologists, Physicians, Speech Language Pathologists, and many other occupations.  PERM is not required for Registered Nurses or Physical Therapists, as the DOL has determined that there is a national shortage of RNs and PTs in the US and therefore the labor market does not need to be tested.

The DOL has not comprehensively examined or modified the PERM process since 2004. Much has changed in the way employers recruit workers since 2004.  The DOL has received ongoing feedback that the existing PERM requirements frequently do not align with worker or industry needs and practices. For instance, the PERM process requires the employer to advertise in the print newspaper; most workers now use online job search engines to find open positions.

The DOL is engaging in new rulemaking that will consider options to modernize the PERM program to be more responsive to changes in the national workforce, to further align the program design with the objectives of the US immigration system, and to enhance the integrity of the labor certification process.

JULY 2015 VISA BULLETIN

The Department of State has just released the July 2015 Visa Bulletin. This is the tenth Visa Bulletin of the 2015 Fiscal Year.  

The retrogression of the Philippines EB-3 continues.  To insure that no Philippine EB-3 visas are issued, the Department of State has made the Philippine EB-3 number Unavailable.  This means that no Philippine EB-3 visas can be issued this fiscal year.  The next fiscal year starts on October 1, 2015. 

This cannot be good news, although MU still believes that the dates will progress with the start of FY 2016.  Please read our blog post from May 19 for deeper analysis on the state of the Philippine EB-3.  

India EB-2 remained at October 1, 2008. India EB-3 only moved up one week to February 1, 2004.  All Other EB-3 moved ahead two months to April 15, 2015, which is also the date for Mexico’s EB-3.

China EB-2 improved another five months to October 1, 2013 and EB-3 remained at September 1, 2011. 

Employment- Based	All Other	CHINA - mainland born	INDIA	MEXICO	PHILIPPINES
1st	C	C	C	C	C
2nd	C	01OCT13	1OCT08	C	C
3rd	15APR15	01SEP11	01FEB04	01APR15	--U--

WHAT OTHER REASONS REQUIRE AN H-1B AMENDMENT?

Much has been discussed about the recent case Matter of Simeio Solutions where the Administrative Appeals Office (AAO) indicated an H-1B amendment is required when an employee changes worksites from one metropolitan area to another.  There are, however, other situations which require the filing of an H-1B amendment.

USCIS regulations indicate that an employer must file an amended petition to reflect any “material changes” in the terms and conditions of employment or training.  While not filing an amended petition can subject both the employer and employee to penalties and liabilities, neither the USCIS or the DOL have defined "material change."

Changes in employment which may require an amended H-1B petition include:

• Change from full-time to part-time employment or vice versa
• Reduction in wages, particularly when it affects the prevailing wage
• Change of more than 50% in job duties, for instance, Occupational Therapist to Director of Rehabilitation

Insignificant alterations in job duties and normal incremental changes in the upward direction do not require an H-1B amendment.  An H-1B amendment is not required for:

• Promotion when job duties are mostly the same, for instance, Physical Therapist to Senior Physical Therapist
• Regular merit-based or cost of living pay increases
• Moving to a new office in the same metropolitan area
• Short-term placement at a new work location for less than 30 days per year
• Non-worksite locations, for instance when an H-1B worker attends an professional conference
• Change in the employer’s name when none of the terms and conditions of employment change

When an H-1B employee’s employment changes, please contact our office.  Together, MU Law and the employer should decide if the change is material and if an H-1B amendment is required.

USCIS SUED OVER INTERIM EADs

By law the USCIS must either adjudicate EAD applications within 90 days or issue interim employment authorization.  On Friday May 26, 2015, a nationwide class action lawsuit was filed against the USCIS for unlawfully delaying the adjudication of applications for Employment Authorization Documents (EADs). The lawsuit alleges that USCIS’s failed to timely adjudicate applications for EADs and to issue interim employment authorization, in violation of USCIS law.

Various classes of individuals may qualify for an EAD, including: individuals with a pending I-485 (green card) application, students on OPT, and L-2, J-2, and H-4 spouses.  While the USCIS has not indicated as such, the volume of EAD applications being received may be causing delays.  Due to the recent retrogression of the Philippines EB3 category and the new H4 EAD rule, the USCIS has certainly been receiving a large number of EAD applications.

It is important to note that unlike an H-1B extension, which if filed before the H expiration extends the work authorization while the extension case is pending, an application for an EAD extension must be approved before the current EAD expires to avoid a gap in work authorization.  Individuals applying to extend their EADs should apply a minimum of 90 days before the expiration of the EAD card.  Individuals must have a valid EAD in hand to be authorized to work in the US.